[Volokh] Jonathan Adler: How Souter's Replacement Could Change the Court:

[notify at powerblogs.com]

Posted by Jonathan Adler:
How Souter's Replacement Could Change the Court:
http://volokh.com/archives/archive_2009_04_26-2009_05_02.shtml#1241187999


   The prevailing wisdom is that replacing Justice David Souter will not
   have a significant impact on the Supreme Court's balance. For most
   high-profile, ideologically charged issues, this is probably true (at
   least in the near term). Justice Souter is generally quite "liberal,"
   and anyone President Obama nominates is likely to be quite liberal as
   well. That said, I think there are two ways in which Souter's
   replacement could have a significant effect on the Court's balance and
   doctrinal trajectory.

   First, Justice Souter's replacement could alter the balance of the
   Court on a number of issues on which the Court is closely divided, but
   does not split along the traditional left-right fault line. Consider,
   for example, this term's decision in [1]Arizona v. Gant. Justice
   Stevens' majority limiting the search-incident-to-arrest exception to
   the warrant requirement was joined by Justices Ginsburg, Souter,
   Scalia and Thomas. Justice Breyer was in dissent. Other criminal law
   cases, including the sentencing guideline cases, have produced similar
   lineups. So, if Justice Souter's replacement were to align with
   Justice Breyer, instead of Justices Stevens and Ginsburg, we could
   have a significant shift on the Court. Indeed, replacing Justice
   Souter with a justice who follows Justice Breyer's approach to
   criminal law issues could actually move the Court to the "right" (at
   least on these issues).

   Replacing Justice Souter could also have a significant effect is on
   the Court's decisions on the due process limitations on punitive
   damages. Justice Souter joined the five justice majorities in [2]BMW
   v. Gore and [3]Philip Morris v. Williams limiting the award of
   punitives on due process grounds, and also wrote the Court's majority
   in [4]Exxon Shipping v. Baker, which limited punitive damages under
   the federal common law of maritime. Again, "liberal" justices are
   split on this question. Here, however, if Souter's replacement were to
   align with Justices Stevens and Ginsburg, it is likely that the
   Court's recent punitive damages cases could be overturned.

   A second way that Justice Souter's replacement could alter the balance
   on the Court would occur behind the scenes. Adding a new justice
   inevitably alters the internal dynamic on the Court, and some justices
   are better coalition builders than others. Insofar as Justice Souter's
   replacement is more (or less) able to forge consensus and draft
   opinions that command wide support, this could also have a significant
   effect on the Court. Even were President Obama to replace Justice
   Souter with someone who votes identically on every issue, the
   nomination could still have a significant impact (especially over
   time) if the new justice is more able to influence his or her
   colleagues.
   Many on the Left say they want President Obama to nominate a
   [5]"liberal Scalia". I would say they should be careful what they wish
   for. Justice Scalia's opinions may be well-written and intellectually
   satisfying, but the same things that can make his opinions fun to read
   may prevent his opinions in many areas from commanding a majority of
   the Court. To take one example, documented by Professor Richard
   Lazarus shows in [6]this paper, Justice Scalia's insistence on
   stronger bright-line rules for regulatory takings prevented him from
   creating a workable majority and produced "precedent heavy on strong
   rhetoric yet light on staying power." It's not an accident there's a
   book of his opinions called [7]Scalia Dissents. So, perhaps
   paradoxically, a liberal nominee who demonstrates less ideological
   fervor, but is more strategic and conciliatory, might be more
   successful at moving the Court leftward.

References

   1. http://www.supremecourtus.gov/opinions/08pdf/07-542.pdf
   2. http://www.law.cornell.edu/supct/html/94-896.ZO.html
   3. http://www.supremecourtus.gov/opinions/06pdf/05-1256.pdf
   4. http://www.supremecourtus.gov/opinions/07pdf/07-219.pdf
   5. http://www.slate.com/id/2210361/pagenum/all/
   6. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=847666
   7. http://www.amazon.com/Scalia-Dissents-Writings-Wittiest-Outspoken/dp/0895260530