New Hampshire Bar Association
About the Bar
For Members
For the Public
Legal Links
Online Store
Vendor Directory
NH Bar Foundation
Judicial Branch

A confidential, independent resource for NH lawyers, judges and law students.

Visit the NH Bar Association's Lawyer Referral Service (LRS) website for information about how our trained staff can help you find an attorney who is right for you.
New Hampshire Bar Association
Lawyer Referral Service Law Related Education NHBA CLE NHBA Insurance Agency
Member Login
Member Portal

Bar Journal - September 1, 1999

A Survey of Justice Souter's Decisions in the October 1998 Term



In 1990, John Sununu, then Chief of Staff for President Bush and former Governor of New Hampshire, declared that conservatives had "hit a home run" when First Circuit Judge David H. Souter was nominated by President Bush to be the 105th Justice of the United States Supreme Court. Less than ten years later, Senator Orrin Hatch, conservative senator from Utah and presidential candidate, would express the opinion that Justice Souter was "the single most liberal justice sitting on the Court."1 Justice Souter's performance on the Supreme Court has been neither as conservative nor as liberal as these two politically motivated statements would indicate. Moreover, Justice Souter may be the person least likely to be concerned about where others believe he fits on the ideological spectrum.

Nevertheless, it is interesting and instructive to evaluate Justice Souter's performance on the Supreme Court in regard to whether he votes with the so-called liberal bloc (generally, Justices Stevens, Ginsburg and Breyer), or with the so-called conservative bloc (generally, Chief Justice Rehnquist and Justices Scalia and Thomas).2 While this type of analysis can be misleading, it does provide a framework for analyzing the role and performance of an individual Justice on the Court.

This article will discuss the Supreme Court's decisions during the term that commenced in October, 1998, which, in the author's opinion, demonstrate most clearly Justice Souter's role on the Court. Accordingly, the focus will be on the closely-decided cases (generally, 5-4 or 6-3 decisions) which reveal or reflect an ideological division within the Court.


On the final day of its 1998-99 term, the Supreme Court announced three 5-4 decisions which held that states were immune from suits by their citizens for alleged violations of federal laws. The Court held that states were immune from suits by state employees alleging violations of the Federal Labor Standards Act of 1938;3 immune from suits by patent owners for alleged infringement of their patents by state universities and agencies;4 and immune from suits alleging unfair competition in violation of the federal trademark laws.5 In each decision, the majority consisted of Chief Justice Rehnquist and Justices Kennedy, O'Connor, Scalia and Thomas; while the dissenters were Justices Stevens, Breyer, Ginsburg and Souter.

In the case involving the Fair Labor Standards Act, Justice Kennedy wrote the decision for the majority while Justice Souter wrote the decision for the dissent. Justice Kennedy began his majority decision by stating that "[w]e first look to evidence of the original understanding of the Constitution", and concluded that "the sovereign's right to assert immunity from suit in its own courts was a principle so well established that no one conceived it would be altered by the new Constitution." Speaking in lofty and ideological terms, Justice Kennedy declared that:

. . . our federalism requires that Congress treat the states in a manner consistent with their status as residuary sovereigns and joint participants in the governance of the nation. . . . When the Federal Government asserts authority over a state's most fundamental political processes, it strikes at the heart of the political accountability so essential to our liberty and republican form of government. . . . Congress has vast power but not all power . . . Congress has ample means to ensure compliance with valid Federal laws, but it must respect the sovereignty of the states.6

Justice Souter, in dissent, concluded that "there is almost no evidence that the generation of the Framers thought sovereign immunity was fundamental in the sense of being unalterable;" and rejected the majority's view that federalism itself necessarily required that states be immune from suits by their citizens. In contrast to the majority decision, Justice Souter focused on the Constitution as a vital and flexible document, stating that the Framers' intentions "do not hover over the [Constitution] to veto any application of its principles to a world that the Framers could not have anticipated." Justice Souter also accused the majority of abandoning a principle "much closer [than sovereign immunity] to the hearts of the Framers: that where there is a right, there must be a remedy."7

One close observer of the Supreme Court concluded that the three immunity cases "thrust the doctrine of state sovereignty well beyond existing boundaries" and constituted "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."8 Justice Souter and the other dissenters clearly indicated that such reconfiguration of power was not required by their view of the Constitution.


In Kolstad v. American Dental Association,9 in a 5-4 decision, the Court held that an employer could not be liable under Title VII of the Civil Rights Act of 1964 for punitive damages, despite a manager's allegedly intentional discrimination, as long as the employer made "good faith efforts" to comply with Title VII. Justices Souter, Ginsburg and Breyer joined Justice Stevens's dissent which concluded that the record contained sufficient evidence from which a jury could find that the employer acted with reckless indifference, and therefore that the case should have been remanded to the district court for a trial on punitive damages.

In Davis v. Monroe County,10 the Court ruled 5-4 that school districts can be liable for damages where they fail to prevent one student from subjecting another to sexual harassment. Justice Souter joined the majority, while the dissenters (Kennedy, Rehnquist, Scalia and Thomas) would not have imposed such vicarious liability on school districts.

Thus in both the civil rights and sexual harassment areas, Justice Souter joined the decision which was more supportive of the injured party's right to sue.


In three cases involving the Fourth Amendment's prohibition against unreasonable searches and seizures, Justice Souter was supportive of defendants' rights.

In Wyoming v. Houghton,11 in a 6-3 decision, the Court held that police officers with probable cause to search a car may inspect passengers' belongings that are capable of concealing the object of the search. Justices Souter and Ginsburg joined Justice Stevens's dissent which would not have allowed the search of the automobile passengers' belongings where the government's probable cause was based upon the driver's conduct. The dissent would have required either a warrant or "individualized probable cause" to justify the search of the passengers' belongings.

In a 5-4 decision, the Court ruled in Minnesota v. Carter12 that a person temporarily in a private home for business purposes may not challenge the validity of a search of the home, because such person has no "legitimate expectation of privacy" in the home. Justice Souter, along with Justices Stevens and Breyer, joined Justice Ginsburg's dissent, which focused on the requirement for individualized probable cause and warned of the dangers of probable cause by association.

In Florida v. White,13 Justice Souter joined Justice Thomas's majority (7-2) opinion that when police officers have probable cause to believe that an automobile contains contraband, a warrant need not be obtained prior to searching the automobile and seizing the contraband. However, Justice Souter also wrote a concurring opinion (joined by Justice Breyer), cautioning "against reading our holding as a general endorsement of warrantless seizures of anything a State chooses to call 'contraband', whether or not the property happens to be in public when seized."14

V. Other Criminal Law Cases

Justice Souter joined a 6-3 majority in Chicago v. Morales,15 in which the Court declared invalid a Chicago anti-loitering ordinance which authorized the police to arrest anyone who, refusing a police order to move on, remained "in one place with no apparent purpose in the presence of a suspected gang member." The majority ruled that the ordinance gave too much discretion to the police to target innocent people. Justices Scalia, Rehnquist and Thomas dissented.

In a 5-4 decision,16 Justice Souter joined Justice Kennedy's majority opinion that a sentencing court, following a guilty plea, could not draw adverse inferences from the defendant's silence, citing the Fifth Amendment's privilege against self-incrimination. The dissenters, Justices Rehnquist, Scalia, O'Connor and Thomas, would have allowed the sentencing court to draw adverse inferences from the defendant's failure to testify.

Justice Souter delivered the opinion of the Court in Jones v. United States,17 a 5-4 decision in which the usual conservative and liberal blocs broke down. Justice Souter's majority opinion was joined by Justices Stevens and Ginsburg but also by Justices Scalia and Thomas. The dissenters were Justices Kennedy, Rehnquist, O'Connor and the usually liberal Breyer. The unusual 5-4 alignment probably resulted from the issue being one of statutory interpretation (whether the federal carjacking statute defined 3 distinct offenses or a single crime with 3 maximum penalties), rather than a constitutional issue with strong ideological overtones.


In cases involving welfare and disability benefits, all decided by 7-2 majorities, Justice Souter indicated that he is probably not at either end of the ideological spectrum on the Supreme Court.

In Saenz v. Roe,18 the majority of the Court, including Justice Souter, held that a California statute which imposed a durational residency requirement for welfare benefits violated the Fourteenth Amendment's right to travel. Only Justices Rehnquist and Thomas dissented.

On the other hand, only Justices Stevens and Breyer dissented from three 7-2 decisions19 in which the majority interpreted the Americans with Disabilities Act of 1990 to require that mitigating measures (e.g., eyeglasses for a person with sight impairment) be taken into account in determining whether an individual has a disability covered by the Act.


Justice Souter's performance in the 1998-99 term of the United States Supreme Court indicates that he is not the staunch conservative that former Governor Sununu hoped he would be; nor is he the "most liberal justice" that United States Senator Orrin Hatch claims that he has become. Perhaps former United States Senator Warren B. Rudman was the most accurate in describing Justice Souter, while introducing him in 1990 at the Senate Judiciary Committee's confirmation hearings, as "a jurist of uncommon quality who brings no agenda or ideology to the bench but only a single-minded commitment to serve justice in the greatest traditions of American jurisprudence."20



Concord Monitor, July 13, 1999 (p. A6).


Generally, Justices Souter, Kennedy and O'Connor have been viewed as moderates whose votes determine closely-decided cases.


Alden v. Maine, 119 S.Ct. ____ (1999).


Florida Prepaid v. College Savings Bank, 119 S.Ct. ____ (1999).


College Savings Bank v. Florida Prepaid, 119 S.Ct. ____ (1999).


Alden v. Maine, supra.




New York Times, June 24, 1999 (p. A1).


119 S.Ct. ____ (1999).


119 S.Ct. 1616 (1999).


119 S.Ct. 1297 (1999).


119 S.Ct. 469 (1999).


119 S.Ct. 1555 (1999).


Id. at 1560.


119 S.Ct. ____ (1999).


Mitchell v. United States, 119 S.Ct. 1307 (1999).


119 S.Ct. 1215 (1999).


119 S.Ct. 1518 (1999).


Sutton v. United Airlines, Inc., 119 S.Ct. ____ (1999); Albertson's, Inc. v. Kirkingburg, 119 S.Ct. _____ (1999); and Murphy v. United Parcel Service, Inc., 119 S.Ct. ____ (1999).


See Senator Rudman's remarks entitled "On the Elevation of David H. Souter to the United States Supreme Court", in Volume 133 New Hampshire Reports, p.x.

The Author

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


If you are in doubt about the status of any meeting, please call the Bar Center at 603-224-6942 before you head out.

Home | About the Bar | For Members | For the Public | Legal Links | Publications | Online Store
Lawyer Referral Service | Law-Related Education | NHBA•CLE | NHBA Insurance Agency | NHMCLE
Search | Calendar

New Hampshire Bar Association
2 Pillsbury Street, Suite 300, Concord NH 03301
phone: (603) 224-6942 fax: (603) 224-2910
© NH Bar Association Disclaimer