Turtle Talk

From the Boston Globe:

When he was nominated to the Supreme Court in 1990, David H. Souter vowed to uphold the “original intent” of the Constitution, words that his backers interpreted to mean he would join the court’s conservative bloc to support states’ rights and limit the reach of federal power.

But as a Supreme Court justice, Souter has often infuriated his initial supporters by repeatedly siding with the court’s liberal wing on issues from abortion to crime, all the while arguing that the founders would have supported his interpretations.

Indeed, legal scholars said, Souter’s two most significant legacies on the court have been his resistance to the erosion of federal power in the 1990s and his insistence that there need not be a conflict between respecting the founders’ intent and backing liberal causes.

Souter’s writing “shows us you can be an originalist without being a conservative,” said Linda Coberly, a Chicago lawyer and former Supreme Court clerk.

Legal scholars said that although often low-key and scholarly in tone, Souter’s opinions – more than 100 of them written in dissent – carved out a distinct outlook on original intent that offered an alternative to the conservative originalism championed by justices like Antonin Scalia and former chief justice William Rehnquist, with whom Souter often sparred.

“Souter wrote brilliant dissenting opinions that showed Rehnquist federalism was contrary to the Constitution, and ultimately in the first several years of this decade, some of those decisions were limited,” said Simon Lazarus of the Federal Rights Project, a liberal judicial group.

In Seminole Tribe of Florida v. Florida (1996), the first of a string of decisions by the Rehnquist court that limited federal power over the states, the court ruled that an Indian tribe in Florida could not use federal law to sue the state of Florida amid a casino dispute.

Souter, in a dissent laced with references to the Constitutional Convention of 1787, argued the court erred in assuming framers intended states to be immune from all lawsuits, and declared that the majority’s “attempt to convert isolated statements by the framers into answers to questions not before them is fundamentally misguided.”

In a similar case three years later, Alden v. Maine (1999), the court ruled that a group of probation officers in Maine could not sue the state government for alleged violations of federal labor law. Souter, in dissent, cited pre-revolutionary state charters, debates over the Constitution, and the Federalist Papers to criticize the ruling, which he wrote “fails for the lack of any substantial support for such a conception in the thinking of the founding era.”

And in a lengthy and influential dissent in United States v. Morrison (2000), when the court struck down parts of the Violence Against Women Act, Souter quoted James Madison and John Marshall to argue that the framers “understood the Constitution very differently” than the conservative majority that struck down the 1994 law intended to make it easier to prosecute rape.

In 2005, however, in Gonzalez vs. Raich, the court ruled that the federal government could outlaw marijuana even in states where it has been approved for medical use. The ruling was opposed by conservatives and lauded by liberals for reaffirming the government’s power to regulate drugs.

In that case, Souter joined the majority.