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Bar Journal - December 1, 2001

A Survey of Justice Souter's Decisions in the 2000-2001 Term


In my article on Justice Souter’s decisions in the 1999-2000 term of the United States Supreme Court, I noted that the results of the 2000 presidential election could determine the composition of the Court for years to come.1  Ironically, the opposite may have occurred: the composition of the Court may have determined the outcome of the 2000 presidential election.

Supreme Court observers and historians will continue to debate the Court’s 5-to-4 decisions that resulted in Florida’s electoral votes, and hence the election, being awarded to Texas Governor George W. Bush. Those supporting the Court’s decision will argue that the Court’s action was necessary to preserve the integrity of the Florida electoral process and reign in an activist Florida Supreme Court. Those opposing the Court’s decision will argue that a conservative majority improperly prevented the State of Florida from continuing to count its ballots, thereby preserving Governor Bush’s narrow lead. Whatever the merits of the two positions, the nine justices will forever be remembered by whether they were part of the five-person majority or the four-person minority. Thus no matter what Justice David H. Souter does for the remainder of his career, it will forever be remembered that he was part of the minority that would have allowed the counting of Florida ballots to continue and could have resulted in the election of Vice President Gore rather than Governor Bush.

A detailed review and analysis of the Supreme Court’s three decisions in regard to the 2000 presidential election is beyond the scope of this article. The following section of this article will briefly discuss and assess those decisions. The remaining sections will discuss other significant decisions of the Court in its 2000-01 term, focusing on Justice Souter’s positions relative to those of the other justices.


The 2000 presidential election was held on November 7, 2000. The next day, the Florida Division of Elections reported that Governor Bush had prevailed by 1,784 votes out of almost 6 million votes cast. Because the margin of victory was less than one-half of one percent, pursuant to Florida law an automatic machine recount occurred, resulting in an even smaller margin of victory. Vice President Gore then exercised his right under Florida law to request manual recounts, requesting recounts in four predominantly Democratic counties. However, the Florida secretary of state refused to accept any returns after the statutory 7-day deadline, which prompted the vice president to challenge that action in the Florida state court system. On November 21, the Florida Supreme Court invoked its equitable powers to extend the deadline for counting ballots by twelve days to November 26, and ordered the secretary of state to accept manual counts submitted prior to that deadline.

Governor Bush then filed a Petition for Certiorari with the United States Supreme Court, which granted certiorari with respect to whether the Florida Supreme Court’s decision violated Federal law or the Federal Constitution.2  Most observers were not surprised when the Court in Bush v. Palm Beach County Canvassing Board3 did not decide the issues accepted for review. Instead, it ruled that there was "considerable uncertainty as to the precise grounds for the [Florida Supreme Court’s] decision," and accordingly remanded the case to that court. Thus it appeared at this point that the Supreme Court would be reluctant to decide issues involving the election and risk the appearance of political partisanship.

When on November 26 the Florida Elections Commission certified the results of the election and declared Governor Bush the winner of Florida’s electoral votes, Vice President Gore filed an action contesting the certification. The Florida Circuit Court denied relief, however Vice President Gore appealed to the Florida Supreme Court, which made several rulings on the certification challenge, including that its prior November 26 deadline had not been intended to exclude votes identified later through ongoing manual recounts.

Governor Bush then filed a Petition for Certiorari with the United States Supreme Court, raising several issues, including whether the use of standardless manual recounts violated the equal protection and due process clauses of the Federal Constitution. In a 5-4 decision (with Justices Stevens, Breyer, Ginsburg and Souter dissenting), the Court on Saturday, December 10, stayed the Florida Supreme Court’s order directing the recount. The Court’s stay has been much criticized, particularly the finding of irreparable injury due to the possibility of Governor Bush being elected president where recounts could show that his opponent actually received more votes.

In its decision on the merits,5  issued at 10 p.m. on December 12, the same 5-4 alignment held that the Florida recount process had not been conducted in compliance with the requirements of equal protection and due process. Further, because there was insufficient time to put a process in place that met minimum constitutional standards, the majority reversed the Supreme Court of Florida’s decision which had ordered the recount to continue.6 

All four dissenting justices (Stevens, Ginsburg, Breyer and Souter) wrote their own opinions. While they differed somewhat in their reasoning, all four agreed that the Florida Supreme Court’s interpretation of Florida’s election laws, as applied to the Bush/Gore recount situation, did not raise any substantial or insurmountable constitutional violations: equal protection, due process or otherwise. And all four would have allowed the recount to continue, at least until December 18 when the Electoral College was to meet.

Justice Souter wrote that he was "in substantial agreement with the dissenting opinions of Justice Stevens, Justice Ginsburg and Justice Breyer," and that he was writing a separate opinion "only to say how straightforward the issues before us really are." Justice Souter acknowledged some merit in Governor Bush’s equal protection claim "that unjustifiably disparate standards are applied in different electoral jurisdictions to otherwise identical facts."8  But he would not have ordered the recounting stopped, and would have remanded the case to the courts of Florida with instructions to establish uniform standards for recounts. Justice Souter found that there was "no justification for denying the State the opportunity to try to count all disputed ballots" prior to the meeting of the Electoral College on December 18.

More so than the other dissenting justices, Justice Souter tried to find some common ground with the majority and did not use confrontational or bitter language in his dissenting opinion. Justice Stevens, for example, dramatically stated as follows:

[The majority’s] position is wholly without merit. The endorsement of that position by the majority of this Court can only lend credence to the most cynical appraisal of the word of judges throughout the land. . . . although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.

As another example, at the end of her opinion, rather than the customary "I respectfully dissent," Justice Ginsburg stated simply: "I dissent."10 

The majority’s decisions in Bush v. Gore have been much criticized. The Court’s decision to stay the counting of ballots was described by a conservative legal scholar as "incomprehensible" and "an unmistakably partisan decision without any foundation in law."11  Ironically, after issuing the stay, the majority’s decision on the merits then relied to a great extent on the argument that there was not enough time left to count the votes in a constitutional manner.

Justice Stevens may be right that in the long run the biggest loss may be the public’s perception of the impartiality of the judiciary. Long after the nuances of the majority and dissenting opinions are forgotten, the general public will remember that the five more conservative justices on the Court adopted Governor Bush’s position while the four more liberal justices adopted that of Vice President Gore. One is reminded of the majority decision written by Justices Souter, O’Connor and Kennedy in 1992 in Planned Parenthood of Southeastern Pennsylvania v. Casey,12  in which the Court upheld the essential holdings of Roe v. Wade,13  including a woman’s right to have an abortion in the early stages of pregnancy and to obtain an abortion without undue interference from the State. That opinion spoke eloquently of the need to have a judiciary that was viewed as an impartial arbiter of disputes based upon longstanding legal principles, rather than as a political or ideological body. Were Roe v. Wade overturned after more than a generation of applying its principles, respect for the judiciary would be eroded. Some of the respect that may have been preserved by that majority opinion in Casey may have been lost – eight years later – by the majority opinion in Bush v. Gore.


One of the more surprising aspects of the majority’s decision in Bush v. Gore is that those same five justices had in recent years decided a number of cases that tipped the balance of power from the federal government to the states. One close observer of the Court described those cases as constituting a "federalism revolution" that adopted "sweeping new theories of sovereign immunity for the states against the reach of federal law."14  Yet in Bush v. Gore, the same majority overrode the Florida Supreme Court’s interpretation of Florida law, and refused to allow the State of Florida to continue counting its ballots.

Notwithstanding Bush v. Gore, the same conservative majority in the last term continued its "federalism revolution" in Board of Trustees v. Garrett.15  The majority ruled in this case that the states’ sovereign immunity prevented Congress from imposing liability for damages on the states for violation of the Americans With Disabilities Act. Justice Breyer’s dissenting opinion, joined by Justices Stevens, Souter and Ginsburg, saw Congress’ authority to impose liability on the states in §5 of the Fourteenth Amendment, which granted Congress the "power to enforce, by appropriate legislation" that Amendment’s guarantee of equal protection.16  While the majority found inadequate evidence in the record of unjustified discrimination against persons with disabilities, the dissenters found that Congress had "compiled a vast legislative record documenting ‘massive, society-wide discrimination’" against such persons.17 


In Texas v. Cobb,18  the same 5-4 majority as in Bush v. Gore again prevailed. The majority held that the police could interrogate a suspect without a lawyer present about a crime that was closely related factually to a crime for which the suspect had already been charged. (The suspect had been charged with burglary and the police questioned him about a murder that occurred during the course of the burglary.) The majority held that the Sixth Amendment right to counsel was "offense-specific," and thus did not extend to other offenses. Justice Breyer’s dissenting opinion, joined by Justice Souter and others, would have precluded the police from questioning a suspect about criminal acts that are "closely related to" or "inextricably intertwined with" the specific crime for which the suspect had been charged.19 

In Atwater v. City of Lago Vista,20  Justice Souter wrote the five-person majority’s opinion, which was joined by four usually conservative justices: Rehnquist, Scalia, Kennedy and Thomas. Justice Souter held that the Fourth Amendment’s prohibition against unreasonable searches and seizures did not prohibit a warrantless arrest for a minor criminal offense, such as the failure to wear a seatbelt. The dissent argued that a full custodial arrest was unreasonable under the cirsumstances.21 

Another unusual 5-4 alignment, with Justice Souter in the majority, resulted in Kyllo v. United States.22  The majority held that the government’s use of a thermal imaging device to scan the outside of a suspect’s home to determine if the heat emanating from the home was consistent with the high-intensity lamps used for growing marijuana indoors was a Fourth Amendment "search." Justices Souter, Ginsburg and Breyer joined the usually-conservative Justices Scalia and Thomas to form the majority. The dissenters, who would have allowed the "search" via the thermal imaging device, argued that the use of the device was more akin to a search of property in plain view (presumptively reasonable) than a search inside a home (with out a warrant, presumptively unreasonable).23 

In two other criminal cases, Justices O’Connor and Kennedy joined the four more liberal justices, including Justice Souter, to form a 6-3 majority. In the first case, City of Indianapolis v. Edmond,24  the majority held that a city’s vehicle checkpoint program violated the Fourth Amendment’s prohibition against unreasonable searches and seizures. The purpose of the checkpoints was to interdict unlawful drugs; the stopping of vehicles was random. The majority reasoned that a general desire to fight crime did not constitute an exception to the Fourth Amendment requirement of individualized suspicion to justify a police search. In Ferguson v. City of Charleston,25  the same 6-3 majority held that a state hospital could not turn over the results of drug tests conducted on pregnant women to the police without the patients’ knowledge or consent. The majority held that a state’s interest in using the threat of criminal sanctions to deter pregnant women from using cocaine could not justify a departure from the general rule prohibiting a nonconsensual search without a warrant.


In three cases interpreting legislation enacted by Congress, the Bush-Gore majority prevailed in 5-4 decisions. Thus, in each case, Justice Souter wrote a dissenting opinion or joined in another justice’s dissent.

In Alexander v. Sandoval,26  the Court held that there was no private right of action to enforce disparate impact regulations27  promulgated by the Department of Justice under Title VI of the Civil Rights Act of 1964. A class action was filed against the Alabama Department of Public Safety to enjoin its decision to administer driver’s license examinations only in English because it had the effect of subjecting non-English speakers to discrimination based on their national origin. The majority held that Congress had not intended private individuals to have a cause of action to enforce disparate impact regulations, that a private cause of action existed only for allegations of intentional discrimination. Justice Stevens’s dissent, joined by Justice Souter and others, would have rejected that distinction, finding no support for it in the case law or the wording of the Civil Rights Act, and would have allowed the private cause of action.28 

In Solid Waste Agency v. Corp of Engineers,29  the issue was whether the Army Corp of Engineers could require a permit for proposed dredging or filling of intrastate waters that provide habitat for migratory birds (the so-called "Migratory Bird Rule"). The Bush-Gore, 5-4 majority held that the Army Corps had exceeded its authority to enact regulations under the Clean Water Act. Justice Stevens’s dissent, joined by Justices Souter, Ginsburg and Breyer, would have upheld the Army Corp’s authority, reasoning that the power to regulate commerce among the states included the power to preserve the natural resources that generate such commerce.30 

The Bush-Gore majority also prevailed, 5-4, in Circuit City Stores, Inc. v. Adams.31  An employee filed a state law employment discrimination action against his employer, which responded by filing suit in federal court to enjoin the state court action and compel arbitration pursuant to the Federal Arbitration Act ("FAA"). The Ninth Circuit interpreted §1 of the FAA, which excludes from the Act’s coverage "contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce," to exempt all employment contracts from the reach of the FAA. The 5-4 majority reversed, holding that the exemption applied only to transportation workers, and therefore that the employer could compel arbitration. Justice Souter authored a dissenting opinion in which the other dissenting justices joined. Justice Souter would have interpreted the exemption expansively such that all employment contracts were exempt from the FAA, not only those involving transportation, and thus would have allowed the employee’s state court action to proceed.32 


In three cases involving the First Amendment right of free speech, Justice Kennedy or Justice O’Connor joined the four "liberal" members of the Court to form a 5-4 majority favoring free speech. In Legal Services Corp. v. Velazquez,33  Justice Kennedy wrote the opinion for the Court in which Justices Stevens, Ginsburg, Breyer and Souter joined. The issue was the validity of a provision of the Legal Services Corporation Act which prohibited Legal Services’ funding for any organization that represented clients in an effort to amend or challenge existing welfare laws. The majority ruled that the provision was unconstitutional as a violation of the organization’s rights of free speech (to advocate against existing welfare laws). Justice Scalia, writing for the dissenters, would have upheld the Act’s provision on the questionable ground that it merely denies funding for organizations that challenge existing welfare laws, but "neither prevents anyone from speaking nor causes anyone to change speech."34 

Justice Souter wrote the majority opinion in Brentwood Academy v. Tennessee Secondary School Athletic Association,35  joined by Justices O’Connor, Stevens, Ginsburg and Breyer. In this case, a private high school challenged the sports recruiting regulation of a not-for-profit athletic association that regulated sports among Tennessee’s public and private high schools on the ground that the regulation was an unconstitutional violation of free speech. The specific issue was whether the Association’s activities constituted state action. Justice Souter reasoned that due primarily to the pervasive entwinement of state school officials in the Association’s structure, the Association’s regulatory activity constituted state action.36  Justice Thomas, writing for the dissenters, said that the state action doctrine "was developed to reach only those actions . . . truly attributable to the state" and "not to subject private citizens to the control of federal courts."37 

Justice Souter also delivered the opinion of the Court in Federal Election Commission v. Colorado Republican Federal Campaign Committee.38  His opinion was joined by Justices O’Connor, Stevens, Ginsburg and Breyer. The Republican Committee challenged, as a violation of free speech, federal limits on "coordinated" spending on behalf of political candidates.39  The 5-4 majority opinion upheld the validity of the distinction adopted by the Supreme Court in 1976 in Buckley v. Valeo40  that limitations on political campaign contributions were generally constitutional while limitations on political expenditures were unconstitutional as a violation of the First Amendment. Justice Souter reasoned that coordinated expenditures could be used to circumvent the Act’s contribution limits, and limitations on such expenditures were therefore constitutional.41 

In Good News Club v. Milford Central School,42 a 6-3 majority (with Justice Breyer joining the Bush-Gore majority Justices) held that the denial of public school facilities to a religious group was a violation of the group’s rights of free speech. Justice Souter filed a dissenting opinion, joined by Justice Ginsburg,43  reasoning that the school’s restriction on the use of its premises for religious purposes was permissible because it was viewpoint-neutral, excluding all religious groups. Justice Souter also would have held that the club’s use of school premises constituted a violation of the Establishment Clause, concluding that:

. . . Good News intends to use the public school premises not for the mere discussion of a subject from a particular, Christian point of view, but for an evangelical service of worship calling children to commit themselves in an act of Christian conversion. The majority . . . ignores reality . . .44 


In two cases involving the rights of aliens, again Justice Kennedy or Justice O’Connor joined with the Bush-Gore dissenters to form a 5-4 majority. In both cases, the majority made decisions protective of aliens’ rights.

In Immigration and Naturalization Service v. St. Cyr,45  the issue was whether an alien United States resident who had pleaded guilty to a criminal charge should be eligible for a waiver of deportation under the more favorable immigration law in effect when he was convicted, or whether the law in effect at the time the deportation proceedings were commenced should apply. Justice Kennedy joined the four Bush-Gore dissenters in ruling that the more favorable law in effect at the time the alien was convicted should apply, and, accordingly, that the federal courts had jurisdiction to review his habeas corpus petition.

In Zadvydas v. Davis,46  Justice O’Connor joined Justice Souter and the other Bush-Gore dissenters in reading a federal statute so as to limit an alien’s detention to a period reasonably necessary to bring about the alien’s removal from the United States, and so as to prohibit indefinite detention. The dissenting justices would have allowed aliens who had committed a crime to be detained "with no specified time limit."47 


Many will remember the present United States Supreme Court justices by how they voted in Bush v. Gore. While Justice Souter dissented in that case, he found some common ground with the majority: He agreed with the majority that lack of uniform standards for recounting votes in Florida constituted a violation of equal protection under the law. He nevertheless agreed with the other dissenters that the matter should have been remanded to Florida to continue the recount under uniform standards. The same 5-4 split prevailed in several other cases during the 2000-01 term of the Court. When the Bush v. Gore dissenters were able to convince another justice to join them in a close case, it was most typically Justice Kennedy or Justice O’Connor.

As for the future, it is interesting to speculate about the effect on the Court of the terrorist attacks of September 11, 2001, as well as other unfortunate events since then. Facing such a national emergency, will the conservatives on the Court be more likely to allow the federal government to expand its powers? Will the Court’s more liberal justices be more likely to accept restrictions on individual liberty, at least where related to suspected terrorist activity? It will be interesting to watch, as Justice Souter and the other justices wrestle with the issues and controversies facing America in the twenty-first century.


1. See Mark H. Puffer, A Survey of Justice Souter’s Decisions in the 1999-2000 Term, Vol. 41, No. 3, N.H. Bar J. 54, 56 (Sept. 2000).
2. The specific issues accepted were whether the decision of the Florida Supreme Court, by changing a state’s electoral appointment procedures after Election Day, violated the due process clause or 3 U.S.C. §5, and whether the Florida Supreme Court’s decision changed the manner in which the State’s electors were to be selected in violation of the State legislature’s power to designate the manner for selection under Article II of the United States Constitution.
3. 121 S. Ct. 471 (2000).
4. 121 S. Ct. 513 (2000).
5. 121 S. Ct. 525 (2000).
6. The Court’s three most conservative justices (Rehnquist, Scalia and Thomas) filed a separate decision arguing that there were additional grounds requiring the reversal of the Florida Supreme Court’s decision.
7. Id. at 543.
8. Id. at 545.
9. Id. at 542.
10. Id. at 550.
11. "Supreme Court Guilty of Judicial Lawlessness," Concord Monitor, December 19, 2000 (p. D7).
12. 112 S. Ct. 2791 (1992).
13. 93 S. Ct. 705 (1973).
14. Linda Greenhouse, The New York Times, December 17, 2000 (Week in Review).
15. 121 S. Ct. 955 (2001).
16. Id. at 969.
17. Id. at 969-72.
18. 121 S. Ct. 1335 (2001).
19. Id. at 1350.
20. 121 S. Ct. 1536 (2001).
21. Id. at 1560-67.
22. 121 S. Ct. 2038 (2001).
23. Id. at 2047.
24. 121 S. Ct. 447 (2000).
25. 121 S. Ct. 1281 (2001).
26. 121 S. Ct. 1511 (2001).
27. Disparate impact regulations are regulations which do not expressly discriminate against persons based on prohibited grounds (e.g., race or national origin) but which have the effect of subjecting individuals to discrimination based on such grounds.
28. Id. at 1523-36.
29. 121 S. Ct. 675 (2001).
30. Id. at 684-96
31. 121 S. Ct. 1302 (2001).
32. Id. at 1318-22.
33. 121 S. Ct. 1043 (2001).
34. Id. at 1058.
35. 121 S. Ct. 924 (2001).
36. Id. at 927-35.
37. Id. at 940.
38. 121 S. Ct. 2351 (2001).
39. "Coordinated" spending is defined by the Federal Election Campaign Act as "expenditures made by any person in cooperation, consultation, or concert, with . . . a candidate." 2 U.S.C. Sec. 441A(a)(7)(B)(i).
40. 96 S. Ct. 612 (1976).
41. Federal Election Commission, supra at 2356-71.
42. 121 S. Ct. 2093 (2001).
43. Justice Stevens filed his own dissenting opinion.
44. Id. at 2117.
45. 121 S. Ct. 2271 (2001).
46. 121 S. Ct. 2491 (2001).
47. Id. at 2507.

The Author

Attorney Mark H. Puffer, Barto and Puffer, Concord, New Hampshire.

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