Bar Journal - September 1, 2000
A SURVEY OF JUSTICE SOUTER’S DECISIONS IN THE 1999 - 2000 TERM
By: Attorney Mark H. Puffer
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
II. THE COURT AND CONGRESS
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
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
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,
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
III. CRIMINAL LAW
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
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
IV. RIGHT TO PRIVACY
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.
V. SEPARATION OF CHURCH AND
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.
VI. FIRST AMENDMENT: FREEDOM OF
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
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.
VII. FIRST AMENDMENT: FREE
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
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.
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
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
6. 120 S. Ct. 1740 (2000).
7. Williams v. Taylor, 120
S. Ct. 1495 (2000).
8. 120 S. Ct. 1291 (2000)
9. Id. at
10. 120 S. Ct. ______ (No. 99-224, June 19, 2000).
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
14. 86 S. Ct. 1602 (1965).
15. 120 S. Ct. 673
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,
19. See article in New York Times, March 29, 2000 (p.
20. 120 S. Ct. ______ (No. 98-1648, June 28,
21. 120 S. Ct. ______ (No. 99-401, June 26,
22. The decision does not invalidate the New Hampshire primary
system in which voters must choose the ballot of a single party.
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
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.”)
Attorney Mark H.
Puffer, Barto and Puffer,