Only four times in the past four terms of the Supreme Court did Justices Sandra O'Connor, William Brennan, Thurgood Marshall, Harry Blackmun and John Paul Stevens join to win a 5-4 decision. Many court observers believed that when Justice David Souter, widely advertised as a conservative, replaced Mr. Brennan, the court's leading liberal, that was the end of that.
This week, in the first 5-4 decision of his tenure on the Supreme Court, Justice Souter voted as Justice Brennan would have, joining Justices O'Connor, Marshall, Blackmun and Stevens in overturning a Florida court on a state criminal case. And not just any criminal case. They overturned a death sentence. This is a highly symbolic issue to the right wing of the Republican Party. Justice Souter's vote certainly must confound them. After all, he was supposed to be the nominee of John Sununu, the most prominent conservative in the Bush administration.
One such vote is not a trend. It may not even be a hint. Yet Justice Souter's questioning on other issues that have come before the court for oral arguments this term also suggests someone who is by no means a doctrinaire conservative.