With Souter on the Bench

October 08, 1990

David Souter gets to work tomorrow as a justice on a Supreme Court that is as predictably conservative as any in the post-war era.

Some cases, including an important school busing case, were argued last week. If the eight justices divide 4-4 on any of these cases, they will have to be reargued and Justice Souter will provide the fifth and deciding vote. There were about a dozen 4-4 cases in the last term of the court and about a half a dozen in the term before that in which the deciding vote was cast by the liberal Justice William Brennan, whose seat on the bench Justice Souter has taken.

Hence, the new justice's pivotal position. Unless he confounds expectations, which is always possible, he will more than likely convert 5-4 liberal victories of the past to 5-4 conservative victories in the future. In addition, many potential 5-4 conservative victories that might have been expected by the court in the Brennan era may now produce 6-3 decisions, which could mean expansive rather than narrow opinions of the court.

This has been developing for a long time. The appellate level of the federal judiciary, for example, is decidedly more conservative in every circuit than was the case a decade ago. For this reason, the Supreme Court's docket is unusually light this term because disagreements among circuits are a frequent cause for appeal to the Supreme Court.

Because of the conservative tilt in the federal judiciary, liberal litigators have been turning to the state courts. In the 1988-89 term of the Supreme Court, the justices ruled for the government 60 times and against it (i.e, for the individual) 45 times. In some recent terms it has been even more pro-government. For comparison, the Maryland Court of Appeals in 1988-89 ruled for the government 26 times and against it 46 times.

The Supreme Court this term will still have some cases of great interest involving liberal and conservative philosophy. That busing case mentioned above focuses on how long busing must continue. Another civil rights case of widespread application deals with whether certain workplace health standards discriminate against women.

Abortion is a perennial: this term's case isn't likely to answer questions David Souter avoided before the Judiciary Committee, since the issue is not whether states can restrict abortion but whether federally funded family planning clinics can advise or answer questions about abortions.

There are two interesting First Amendment cases -- one dealing with damaging unauthenticated quotes in published articles and the other with nude dancing. Finally there is a sad, bizarre case from Louisiana. It tests the state's right to cure against his will a mentally ill death row inmate whose cure would lead to his execution.

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