Justice Souter's First Year

July 07, 1991

As expected, Justice David Souter voted as a good conservative Republican during his first term on the Supreme Court. On a court that was markedly conservative, Justice Souter voted with the majority 97 times and dissented only five times. To put that in perspective, Justice Thurgood Marshall dissented 25 times.

Of 21 5-4 decisions, Justice Souter was in the majority 15 times -- 13 of which he and Chief Justice William Rehnquist, the conservatives' leader, were together. Much of the conservative profile that the newest justice displayed was due to the high number of criminal case opinions this court issued. On non-criminal matters, Justice Souter sided with the chief justice only 41 of 53 times in which there was a liberal-conservative split.

These statistics are good for analysis of the past, but not of the future. No one can say after one term what kind of justice Mr. Souter will be. For one thing, he did not write many opinions -- only eight. That wasn't always considered meager, but in recent years, most justices have been writing more. In some cases, many more. In some cases, too many more: over 40 in several instances.

But the real reason Justice Souter can't be figured out on the basis of his freshman term is that in many instances, justices change. Justice Harry Blackmun voted so consistently (90 percent) with his fellow Minnesotan, conservative Chief Justice Warren Burger, in the 1970 term that they were labeled "the Minnesota twins." Fifteen years later in Mr. Burger's last term, that was down to 50 percent. It works in both directions. Justice Byron White voted with liberal Justice William Brennan 82 percent of the time in his first full term on the court (1963-1964). Fifteen years later, that had dropped to 54 percent.

We expect Justice Souter will be a reliable conservative in the terms ahead, but there are all kinds of conservatives and several degrees of conservatism. What kind and to what degree he will be conservative remains shrouded in mystery.


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