Souter settles in at high court's center

April 07, 1991|By Lyle Denniston | Lyle Denniston,Washington Bureau of The Sun

WASHINGTON -- Justice David H. Souter went to th Supreme Court trailing a White House prediction that his selection would be a "home run" for the conservative cause. He )) is proving much of the time -- at least by his votes -- that that isn't necessarily so.

So far in his first term -- about a third of the way through the expected decisions -- he has tended to line up most often with Justice Sandra Day O'Connor, who seems increasingly to lead a moderate bloc that often controls outcomes.

Of the 40 rulings the court has issued up to this point, 16 stood out as the most important, and Justice Souter voted on 13 of those. He was in the majority every time; the only other justice always in the majority in those: Justice O'Connor. (In fact, she took part in all 16 and did not dissent in any.)

Thomas Rath, a Concord, N.H., lawyer and one of Justice Souter's closest friends, remarked in a telephone interview: "I thought he would be somewhere in the middle of that court and in a position to give himself a lot of room for movement." That, he added, is exactly what he has seen happening. "He seeks his own spot."

The newest justice, according to his friend, "is turning out to be somewhat unpredictable -- and reasonable, with no preset ideologies." Recalling that many of the liberal organizations that had fought Justice Souter's nomination worried over what he had not revealed about his views, Mr. Rath said the justice has demonstrated that there was no hidden agenda he was waiting to implement.

Justice Souter has yet to dissent in any case and has written only one opinion, so most of the evidence of his positioning comes from the votes he has cast to support the majority view in a variety of key cases and from the moderate views that have seemed to emerge as he questions lawyers in public hearings.

The justices with whom he has voted least often on key cases are the four on the two philosophical ends of the court: the most conservative, Chief Justice William H. Rehnquist and Justice Antonin Scalia, and the most liberal, Justices Thurgood Marshall and John Paul Stevens.

Some of the conservative organizations that ultimately supported Justice Souter's nomination had hoped he would move rapidly intothe Rehnquist-Scalia bloc, and private assurances from White House Chief of Staff John H. Sununu apparently bolstered that expectation.

In fact, some of President Bush's most fervent conservative followers had supported another candidate for the court vacancy last year -- Circuit Judge Edith H. Jones of Houston, who has established one of the most conservative records of any federal appeals judge. Justice Souter was chosen by the president over her at the last minute, and conservatives fretted privately, until Mr. Sununu provided a reassuring word.

At his Senate nomination hearings, however, Justice Souter took positions that strongly indicated that he would be more moderate than Judge Jones. That seems to be the case, according to his votes up to now.

Often, a justice's leaning is best measured by votes cast in a 5-4 ruling: the toughest cases for the court to decide.

Justice Souter has gone both ways on two major criminal law rulings so far this term. He supported Justice O'Connor, over the dissents of four conservatives, when she wrote a ruling in January enhancing death row inmates' prospects for overturning their sentences on appeal, and he supported the chief justice, over the dissents of four moderate or liberal justices, in a decision allowing some guilty verdicts to stand even though they were based in part on confessions forced out of suspects unconstitutionally.

In two 6-3 key decisions interpreting federal civil rights law, he alsowas found lining up with differing blocs. He supported Justice Harry A. Blackmun's broad ruling favoring a right for female workers of childbearing years to decide for themselves whether to take jobs that might be hazardous to fetuses they might carry, but he supported the chief justice's restrictive decision denying the use of American law to assure equality on the job for U.S. workers in overseas plants or offices of U.S. companies.

Neither vote surprised Mr. Rath. "He decides the case in front of him -- that always makes him hard to predict -- instead of being out there looking for an ideological position and fitting himself into it."

A few times, Justice Souter's votes and public actions have drawn him noticeably away from Justice Scalia, who is commonly considered to be the most determinedly conservative member of the court, and the chief justice, who ranks next to Justice Scalia in that measure.

In two significant cases, when the court gave illegal alien farm workers a new chance to stay in this country under federal "amnesty," and when it narrowed further the rights of prosecutors to shape the racial makeup of criminal trial juries, Justice Souter was in the majority, while only the chief justice and Justice Scalia dissented.

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