DAVID HACKETT SOUTER ~ September 17, 1939

David Hackett Souter (born September 17, 1939) served as an Associate Justice of the Supreme Court of the United States from 1990 until his retirement from the Court on June 29, 2009. He filled the seat vacated by William J. Brennan, Jr.

Appointed by Republican President George H. W. Bush, Souter served on both the Rehnquist and current Roberts courts, and was often considered a member of the court's traditional liberal wing.

At the time of Souter's appointment, John Sununu assured President Bush and conservatives that Souter would be a "home run" for conservatism. In his testimony before the Senate, Souter espoused the concepts of originalism (as Bork had done) and was thus thought by conservatives to be a strict constructionist on constitutional matters. However, in the state attorney general's office and as a state Supreme Court judge, he had never been tested on matters of federal law.

Initially, from 1990 to 1993, Souter tended to be a conservative-leaning justice, although not as conservative as Antonin Scalia, Clarence Thomas or William Rehnquist. In Souter's first year, Souter and Scalia voted alike close to 85 percent of the time; Souter voted with Kennedy and O'Connor about 97 percent of the time. The symbolic turning point came in two cases in 1992, Planned Parenthood v. Casey, in which the Court reaffirmed the essential holding in Roe v. Wade, and Lee v. Weisman, in which Souter voted against allowing prayer at a high school graduation ceremony. In Planned Parenthood v. Casey, Anthony Kennedy considered overturning Roe and upholding all the restrictions at issue in Casey. Souter considered upholding all the restrictions but still was uneasy about overturning Roe. After consulting with O'Connor, however, the three (who came to be known as the "troika") developed a joint opinion that upheld all the restrictions in the Casey case except for the mandatory notification of a husband while asserting the essential holding of Roe, that a right to an abortion is protected by the Constitution.

After the appointment of Clarence Thomas, Souter moved to the middle. By the late 1990s, Souter began to align himself more with Stephen Breyer and Ruth Bader Ginsburg on rulings, although as of 1995, he sided on more occasions with the more liberal justice, John Paul Stevens, than either Breyer or Ginsburg, both Clinton appointees. O'Connor began to move to the center. On the abortion issue, Souter began to vote to override restrictions he believed in back in 1992. On death penalty cases, worker rights cases, criminal rights cases, and other issues, Souter began voting with the liberals in the court. So while appointed by a Republican president and thus expected to be conservative, Souter came to be considered part of the liberal wing of the court. Because of this, many conservatives view the Souter appointment as a major error on the part of the Bush administration and have gone on to intensely scrutinize future potential Republican appointees on the standard of whether they would be reliable conservatives.

In April 2009, Souter announced that he would be retiring at the end of the current Supreme Court term in June. On May 26, 2009, President Obama announced that he was nominating Judge Sonia Sotomayor to replace Justice Souter on the Court. Sotomayor was confirmed by by a 61 to 31 vote in the Senate on August 6, 2009.

Image & text:wikipedia.com

Today is also the birthday of my first cousin Claora Styron. Clae grew up in Lincoln, Mass.-- not far from David Souter's New Hampshire-- and now lives just a few blocks from me in the Mission District of San Francisco.

And appropriately-- considering Justice Souter's birthday -- it is the 226th Anniversary of the United States Constitution.

A 28th AMENDMENT to the U.S. CONSTITUTION

Zavikon Island in the Thousand Islands on the St. Lawrence River

PROPOSAL FOR A NEW CONSTITUTIONAL AMENDMENT

Oh, no! Not another nut attempting to tamper with the Constitution! Don’t people realize that our Republic has endured so long in part because our Founding Fathers bequeathed to us an elegantly sparse Constitution? Why clutter it up with unnecessary amendments!

At the outset, I must confess, I am not a supporter of the amendment to protect the flag. Yes, I do revere the flag of the United States of America. Some of my fondest memories from childhood were raising and lowering the flag at my maternal grandfather's summer house in the Thousand Islands on the Saint Lawrence River near Alexandria Bay, New York. We had an elaborate ceremony at the beginning and end of each day. We were extremely diligent not to let the flag touch the ground. We folded it carefully in military triangle fashion. (Curiously, I recall some regulation, which specified that burning was the only lawful way to dispose of an old, tattered flag). My grandfather had been a staunchly conservative Republican Congressman from Pennsylvania during the New Deal. I am one of his two namesakes. He and I would most likely have disagreed on most issues; but admiration for our flag is one on which we agreed. (Then there are the mythic images of Iwo Jima, Fort McHenry, and ‘Old Glory’ on the moon). My reason for opposition to the proposed amendment is: despite the opening words of the Pledge of Allegiance, I do not consider that I actually pledge allegiance to the flag— a piece of cloth— instead, I pledge allegiance to the country, to the constitution, to the concepts which establish our liberty. And one of those concepts is freedom of expression as protected in the First Amendment. I consider the proposed flag amendment to be so much political posturing. I'm not aware of any current outbreaks of flag burning. But even more important than protecting the flag, is redefining a proper balance between the three branches of the Federal Government.

Recently, there have been a number of five-to-four decisions by the Supreme Court, which ruled several U.S. laws to be unconstitutional. On the face of it, it seems to me, that a one-vote majority, by a supposedly third co-equal branch of government over-ruling legislation passed and signed by two other co-equal branches of government, is structurally out of balance. But you say, doesn’t the President, as a majority of one, have the authority to veto legislation passed by the two houses of Congress? Yes, but Article I, Section 7 of the Constitution clearly defines a procedure for the Congress to override the President’s veto by means of a two thirds vote in both houses.

The Supreme Court, on the other hand, has no such specific procedure defined in Article III. Section 2 of Article III apparently gives jurisdiction over Laws of the United States to the Supreme Court; but it wasn’t until fourteen years after ratification— a time when many, if not most, of the original framers were still alive to be consulted about their intent— that the doctrine of judicial review was asserted in the 1803 decision by Chief Justice John Marshall in the seminal Marbury v. Madison case.

The doctrine of judicial review is clearly established, so why consider a constitutional amendment on the matter 205 years later? Let me offer an example. It wasn’t until 126 years after the assertion of a Vice-President to be called “President” instead of “Acting-President” when succeeding in mid-term, that an amendment clearly defined what had already been established in practice. That was done in Section 1 of the 25th Amendment ratified in 1967. Had William Henry Harrison died in the last year of his term rather than near the end of his first month in office, Vice-President Tyler might have been content to have been addressed as “Acting-President” (as, indeed, Vladimir Putin did in the Russian Republic). Forty-seven months was apparently too long. Besides, Tyler held the office, and so appropriated the title. The precedent was set and used six more times before the 25th Amendment legalized the title as part of the procedure for selecting a new Vice-President. So here goes my proposed amendment for clarifying judicial review.

28th Amendment to the Constitution of the United States of America


XXVIII

Section 1. The Supreme Court of the United States retains authority for judicial review of all United States Laws as passed by the two houses of Congress and signed by the President, or passed by two thirds override of a Presidential veto.

Section 2. To render a United States Law unconstitutional, the Supreme Court of the United States must decide by an affirmative vote of at least two thirds of the justices on the Supreme Court.

Section 3. This amendment does not apply retroactively to previously adjudicated cases, nor to other jurisdictions enumerated in Article III.

Under the current configuration, a two-thirds vote by the Supreme Court would be six to three— or two to one— surely a more powerful and a greater moral authority for overturning legislation than a simple majority. Linda Greenhouse, in her report about the May 15, 2000, five-to-four vote overturning the Violence Against Women Act, wrote in the New York Times published May 17, 2000,that the decision in the United States v. Morrison represents the “…court’s new federalism jurisprudence….: holding Congress to its limited and enumerated powers.” The problem is, there is no countering limited and enumerated power defined for the court, itself, in the matter of judicial review of legislation. For all the criticism of the so-called activist Warren Court, many of its most controversial decisions were passed unanimously. This proposed amendment falls short of that, but is an attempt to set aright a structural imbalance between three co-equal branches of government; so that a single Supreme Court Justice would not be able to invalidate an established law simply by majority vote.

Granted, I might regret some future five-to-four vote, which would not prevail because of this new amendment. So be it. The procedure, at least, would be appropriate; and a more proper balance, established between the three branches of the Federal Government.

Rob Bell
San Francisco

Robert F. Rich Bell
Grandson of
The Hon. Robert F. Rich
Member of Congress
16th Congressional District of Pennsylvania
1931-51