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Bar Journal - September 1, 2000




This article will continue my analysis, begun in the September, 1999, Bar Journal,1  of Justice David H. Souter’s performance and role on the Supreme Court.  The premise of my earlier article was that Justice Souter, together with Justices Kennedy and O’Connor, constituted a centrist block on the Court between three so-called conservative justices (Chief Justice Rehnquist and Justices Scalia and Thomas) and three so-called liberal justices (Justices Stevens, Breyer and Ginsburg).2   However, during the 1999-2000 term of the Court, a definite trend emerged in which Justices Kennedy and O’Connor joined a conservative 5-to-4 majority while Justice Souter joined the liberal justices in dissent.

Indeed, approximately one-third of the Supreme Court’s decisions in the 1999-2000 term were decided by 5-to-4 votes, many with this identical conservative-liberal alignment.  Almost all of these 5-to-4 decisions involved headline-making, controversial issues.  One result of the present configuration on the Court may be that, for the first time in well over half a century, potential appointments to the Supreme Court will be a significant issue in the 2000 Presidential election.3


In five important decisions involving the Supreme Court’s review of federal legislation, all 5-4 decisions, the majority consisted of Chief Justice Rehnquist and Justices Scalia, Thomas, Kennedy and O’Connor while the dissenters were Justices Stevens, Breyer, Ginsburg and Souter.  In each case, the majority voted to limit the power of Congress or of federal judges, while the dissent would have acknowledged or allowed such power.

In Kimel v. Florida Board of Regents,4  the majority ruled that Congress lacked authority to make the states liable to suit under the federal Age Discrimination in Employment Act.  Continuing the rationale adopted by the same five justices on the last day of the 1998-99 term in three “federalism” cases,5  the majority held that the states’ sovereign immunity prevented Congress from subjecting them to suit in federal court.

In United States v. Morrison,6  the same majority invalidated the Violence Against Women Act which had allowed suits in federal court by victims of crimes “motivated by gender.”  Justice Souter’s dissent, joined by Stevens, Breyer and Ginsburg, would have upheld Congress’ authority under the Commerce Clause to address the well-documented problem of violence against women.

The third case involved the interpretation of a law which barred federal courts from setting aside a state court decision unless the state ruling was an “unreasonable” interpretation of federal law.7   The conservative majority ruled that a state court decision was not necessarily unreasonable even if it was wrong, while the dissenters, including Justice Souter, would have held that federal judges should not have to defer to state court decisions which they believed to be incorrect.

In Food and Drug Administration v. Brown & Williamson Tobacco Corp.,8  the conservative majority ruled that the FDA had not received authority from Congress to regulate tobacco products, invalidating the FDA’s rules governing tobacco, including those which had restricted the marketing of cigarettes to children and teenagers.  Justice Breyer’s dissent, joined by Justices Stevens, Ginsburg and Souter, would have upheld the FDA’s regulations under its authority to regulate “articles (other than food) intended to affect the structure or any function of the body,” and because the basic purpose of the federal Food, Drug and Cosmetic Act was to protect public health.9

In another 5-4 decision, Miller v. French,1 0 the conservative majority upheld a provision of the Prison Litigation Reform Act which restricted federal judges from keeping in place court orders concerning the operation of state and local prison systems.  The dissenters, including Justice Souter, would have invalidated the Act’s restrictions on the authority of federal judges.

In all five of the above 5-4 decisions, the conservative majority voted to restrict the power of Congress or of federal judges.1 1 The dissenters, including Justice

Souter, would not have invalidated the Congressional acts and would not have limited the authority of federal judges.  The conventional wisdom is that the majority has a  “conservative” view of the role of government and the dissenters a “liberal” view.  On the other hand, it is the members of the conservative majority who are being the judicial activists trying to reconfigure the balance of power between the federal government and the states.1 2 The dissenters, it can be argued, are the true judicial conservatives, adhering to precedent and applying longstanding canons of construction to federal legislation.


The most anticipated criminal law case of the 1999-2000 term was Dickerson v. United States1 3 in which the Court had the opportunity to overrule Miranda v. Arizona.1 4 However, the Court by a 7-to-2 majority held that Congress could not replace the constitutionally-required Miranda warnings with the general standard of whether a confession was voluntary.  Only Justices Scalia and Thomas dissented.  In his majority opinion, Chief Justice Rehnquist acknowledged that the Miranda warnings had become part of the American legal “culture” even though he might not have voted to require them when Miranda was decided in 1965.

In Illinois v. Wardlow,1 5 the emerging 5-to-4 majority, with Justices Stevens, Ginsburg, Breyer and Souter dissenting, ruled that a person’s flight at the sight of a police officer can justify the police in conducting a stop-and-frisk search.  The dissenters would have required more evidence that the person in question had committed a crime before the police could search that person.

In another search and seizure case, Bond v. United States,1 6 Justice Souter joined a 7-to-2 majority ruling that a law enforcement officer violated the Fourth Amendment’s proscription against unreasonable searches by physically manipulating a bus passenger’s luggage without some particular suspicion of wrongdoing by that passenger.  Only Justices Breyer and Scalia dissented.


In Stenberg v. Carhart,1 7 a 5-to-4 majority, including Justice Souter, held unconstitutional a Nebraska law which banned partial-birth abortion.  The majority consisted of the four “liberal” dissenters in many of the above-discussed cases, plus Justice O’Connor.  The majority reasoned that the banning of such procedure would create an “undue burden” on a woman’s right to privacy.


In two cases involving the First Amendment’s prohibition against the government’s establishment of religion, Justice Souter voted in favor of maintaining the separation of church and state.

In Santa Fe Independent School District v.  Doe,1 8 a 6-to-3 decision, Justice Souter joined Justice Stevens’s majority opinion that student-led prayer at public high school football games amounted to an unconstitutional establishment of religion.  While the Santa Fe School District and the three dissenters (Rehnquist, Scalia and Thomas) argued that the student-led prayers were constitutional as long as the school administration did not dictate their subject matter, the majority’s position was foreshadowed during oral argument when Justice Souter stated as follows:

We’re talking here not about a neutral speech policy, not merely a discussion about religious subject matter.  It is religious worship, and the question is whether that may be inflicted upon those who may not want it.1 9

In another 6-to-3 decision, with Justices Stevens, Ginsburg and Souter dissenting, the Court in Mitchell v. Helms2 0 upheld a federal program which financed computers and other equipment for parochial schools.  The dissenters would have held such aid to be an impermissible establishment of religion by the government.


In California Democratic Party v. Jones,2 1 Justice Souter joined a 7-to-2 majority decision which invalidated that State’s primary law where all voters received the same ballot on which they could vote for candidates from any party.  The majority reasoned that such a primary stripped the political parties of their right to political association.2 2 Only Justices Stevens and Ginsburg dissented.

In Boy Scouts of America v. Dale,2 3 the same 5-to-4 split of the Court prevalent in many of the above-referenced cases (with Stevens, Breyer, Ginsburg and Souter dissenting) held that the Boy Scouts’ right to freedom of association allowed them to exclude gay members since opposition to homosexuality is part of the Boy Scouts’ “expressive message.”  The dissenters would have held that the Boy Scouts’ right to freedom of association was outweighed by the civil rights of the gay members.


In a 6-3 opinion authored by Justice Souter, the Court upheld the campaign finance law of Missouri which established a $1,000 limit on political contributions.2 4  The dissenters were Justices Kennedy, Scalia and Thomas who would have invalidated limits on political contributions without proof that they were necessary to combat demonstrated corruption.

In United States v. Playboy Entertainment Group,2 5 the Court voted 5-to-4 to invalidate a federal law that required cable television stations to show sexually explicit programs only late at night.  Justice Souter joined Justice Kennedy’s majority opinion which was based upon the stations’ right to freedom of expression.

In a 6-3 decision, the Court in City of Erie v. Pap’s A.M.,2 6 upheld a nude dancing ordinance which required participants to wear pasties and a G-string.  Justices Stevens, Ginsburg and Souter dissented.  In a separately written opinion, Justice Souter acknowledged that he had changed his position from his concurring opinion in a 1991 case; thus, according to Justice Souter, to justify restrictions on the freedom of expression, the government must prove the existence of “pernicious secondary effects” from the restricted activity, and may not simply assume their existence.  Justice Souter humbly explained his change of opinion by referring to former Justice Jackson’s own explanation for a change in position when he had quoted Samuel Johnson:  “Ignorance, sir, ignorance”.27


Many of the Supreme Court’s decisions during its 1999-2000 term, especially those involving newsworthy or controversial issues, were by 5-to-4 or 6-to-3 votes.  As shown in several important cases involving the issues of federalism, search and seizure, freedom of association, freedom of speech and separation of church and state, Justice Souter most typically joined with Justices Stevens, Breyer and Ginsburg in dissent.  Because the next President of the United States is likely to appoint at least two new justices to the Supreme Court, the results of the 2000 Presidential election may well determine whether Justice Souter spends the better part of his career on the Supreme Court dissenting or joining a newly-constituted majority.

1. See Mark H. Puffer, A Survey of Justice Souter’s Decisions in the October 1998 Term, 40(3), N .H. Bar J. 40-42 (Sept. 1999).
2. Id. at 40 (text at Endtnote 1).
3. The last occasion was probably the 1936 Presidential election which followed President Franklin D. Roosevelt’s attempt to “pack the court” (by increasing the number of justices from 9 to 15), in response to a conservative Court’s declaring unconstitutional most of his New Deal legislation.
4. 120 S. Ct. 631 (2000).
5. In those cases, the same 5-4 majority held that states were immune from suits by state employees alleging violations of the Federal Labor Standards Act (Alden v. Maine, 119 S. Ct. 2240 (1999)), immune from suits by patent owners for infringement of their patents by state universities and agencies (Florida Prepaid v. College Savings Bank, 119 S. Ct. 2199 (1999)), and immune from suits alleging unfair competition in violation of the Federal Trademark Laws (College Savings Bank v. Florida Prepaid, 119 S. Ct. 2219 (1999)).
6. 120 S. Ct. 1740 (2000).
7. Williams v. Taylor, 120 S. Ct. 1495 (2000).
8. 120 S. Ct. 1291 (2000)
9. Id. at 1316.
10. 120 S. Ct. ______ (No. 99-224, June 19, 2000).
11. In Miller v. French, supra at note 10, the majority upheld the federal legislation but where it restricted the authority of federal judges.
12. E.g., Linda Greenhouse, the New York Times, reporter on the Supreme Court, has concluded that the state sovereign immunity cases “thrust the doctrine of state sovereignty well beyond existing boundaries” and are “the most powerful indication yet of a narrow majority’s determination to reconfigure the balance between state and Federal authority in favor of the states.”  New York Times, June 24, 1999 (p. A1).
13. 120 S. Ct. _______ (No. 99-5525, June 26, 2000).
14. 86 S. Ct. 1602 (1965).
15. 120 S. Ct. 673 (2000).
16. 120 S. Ct. 1462 (2000).
17. 120 S. Ct. ______ (No. 99-830, June 28, 2000).
18. 120 S. Ct. ______ (No. 99-62, June 19, 2000).
19. See article in New York Times, March 29, 2000 (p. A24).
20. 120 S. Ct. ______ (No. 98-1648, June 28, 2000).
21. 120 S. Ct. ______ (No. 99-401, June 26, 2000).
22. The decision does not invalidate the New Hampshire primary system in which voters must choose the ballot of a single party.
23. 120 S. Ct. _____ (No. 99-699, June 28, 2000).
24. Nixon v. Shrink Missouri Government PAC et al., 120 S. Ct. 897 (2000).
25. 120 S. Ct. 1878 (2000).
26. 120 S. Ct. 1382 (2000).
27. 27. Id. at 1405-06 (Justice Souter:  “I hope it is enlightenment on my part, and acceptable even if a little late.”)

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

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