The Heritage Foundation - Leadership for America

Though certainly no originalist, Justice David Souter is not a complete judicial activist, either. On a number of cases and issues, he has rejected the activist “empathy” standard promoted by President Obama to instead cast votes and write opinions that are in accord with the demands of the Constitution and the rule of law. And in a number of cases, particularly in the areas of crime and punishment and lawsuit abuse, he has broken ranks with the Court’s more liberal wing to do so. Here is a sampling of some of Justice Souter’s most significant stands in favor of the rule of law:

Punitive Damages: In Exxon v. Baker (2008), Souter authored a majority opinion, which was joined by Justices Roberts, Scalia, Thomas, and Kennedy, explaining that maritime common law imposes limits on excessive punitive damages and thus rejecting a lower court ruling that would have required Exxon to pay billions in punitive damages for the Valdez oil spill on top of the money it had already paid out in damages to compensate for actual injuries, as well as the $2.1 billion it spent on cleanup efforts. This decision was widely viewed as a major loss for trial lawyers, who count on excessive punitive damages to justify bringing otherwise low-damage, often frivolous lawsuits.

Lawsuit Abuse: In Bell Atlantic v. Twombly (2007), Souter authored a majority opinion, joined by Justices Roberts, Scalia, Thomas, and Alito, holding that a plaintiff initiating a lawsuit must go beyond merely stating his accusation and must further lay forth facts that “raise a reasonable expectation” that he may have a right to relief. This decision, the consequences of which are still being worked out in the lower courts, was seen as a major loss for trial lawyers, who frequently initiate lawsuits without any factual basis and then abuse the discovery process to conduct fishing expeditions to find some basis to coerce an expensive settlement.

Crime: In Arizona v. Evans (1995), Souter joined a majority opinion by Justice Rehnquist holding that a defendant convicted of drug possession would not have to go free due to clerical error that led a police officer to stop and search his car.

Privacy: In Kyllo v. U.S. (2001), Souter joined a majority opinion by Justice Scalia holding that government agents need a judge-issued warrant, supported by probable cause to believe that a crime is being committed, to use a thermal imaging device to explore details of a home that would have otherwise been unknowable without physical intrusion.

Victims’ Rights: In Payne v. Tennessee (1991), Justice Souter authored an opinion arguing that the Constitution does not prohibit the consideration of a crime’s impact on the victim and the victim’s survivors during the sentencing phase of a trial.

In nearly all of these cases, more liberal members of the Supreme Court sought outcomes inconsistent with the Constitution and the rule of law. That block would find additional strength if President Obama appoints a liberal activist to the Court to replace Justice Souter, a center-left moderate, and many cases like those listed above would come out differently.

The results: violent criminal would be freed for minor blunders by police, tough sentences for violent crimes would be struck down, trial lawyers would have more opportunities than ever to launch frivolous but expensive lawsuits, and victims of crimes would be denied a role in the criminal-justice system.

The bottom line: Justice Souter was no conservative and no originalist, but replacing him with a far-left activist would change the balance of the Court for the worse.