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May 01, 2009


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There's a ratio of around 20 laudatory adjectives applied to Justice Souter & his jurisprudence, to 0 written opinions cited as examples. That's the most prominent and telling take-way from Geoffrey Stone's post. And what examples could Mr. Stone cite? None come to mind; certainly not the joint opinion in Casey. That opinion is not noted for its constitutional depth or analytical rigor, even among those who favor its result.

It is interesting, however, to see Mr. Stone's explanation of the Greenhouse Effect, i.e., the tendency of many Justices to get more liberal. The Effect, says Stone, is due to the inherent virtue of its carriers, when confronted over the years with many examples of injustice. This theory has the great advantage of feeding the vanity of those to whom it is applied, and of anyone else on the Left side of the political spectrum, e.g., Mr. Stone. It's much more satisfying than the original explanation of DC Circuit Court Judge Lawrence Silberman, which is that some judges like to make stuff up in order to conform to elite opinion.

Uzair Kayani

It is unfair to characterize Justice Souter as overly political or liberal.

For example, in Hurley v. Irish American, Lesbian, and Bisexual Group of Boston, 515 US 557 (1995), he upheld the Boston St. Patrick's Day Parade's right to exclude Irish American, Lesbian, and Bisexual group (IALB) members from its gathering. The theory was that the presence of IALB members interfered with the parade's message and so infringed the parade members' First Amendment rights. The case came out this way even though it is unclear what the parade's message was; there were a host of banner carriers with various messages involved. This decision may be liberal in the general sense that it strengthens Free Speech doctrine (so that gatherings can choose what *not* to say) but it is certainly not liberal in the political sense. It may even be conservative insofar as it diminished political speech by denying a marginalized group a forum that was available to many other groups. Justice Souter suggested that Massachusetts had the purpose of promoting a particular message (acceptance of IALB) and found that it could not do this by infringing the parade members' speech rights.

In the Grokster case, Justice Souter apparently cut against the earlier Sony decision by holding that the developer of file-sharing software may be liable for contributory infringement of copyright because the developer had *induced* users to share files illegally. This is a key pro intellectual property rights decision. It would never be characterized as politically liberal.

On the other hand, in McCreary County v. ACLU, 545 US 844 (2005), Justice Souter ruled that a couple of prominent displays of the Ten Commandments that were sponsored by the Kentucky government violated the Establishment Clause. There, Justice Souter reaffirmed purposive interpretation of statutes because he suspected that strict textualism would do away with the Lemon Test and various other bedrocks of constitutional law. He wrote: “Examination of purpose is a staple of statutory interpretation that makes up the daily fare of every appellate court in the country and governmental purpose is a key element of a good deal of constitutional doctrine. With enquiries into purpose this common, if they were nothing but hunts for mares’ nests deflecting attention from bare judicial will, the whole notion of purpose in law would have dropped into disrepute long ago. But scrutinizing purpose does make practical sense, as in Establishment Clause analysis, where an understanding of official objective emerges from readily discoverable fact, without any judicial psychoanalysis of a drafter’s heart of hearts.”

People seem to become "liberals" these days by not changing at all.


Coincidentally, there's some talk that the federal judge and former lawyer at Covington & Burling who apparently threw out a civil lawsuit by Superior Bank despositors against former Obama National Campaign Finance Chair and Superior Bank board member Penny Pritzker, Diane Paula Wood, will be replacing Souter on the Supreme Court bench.

And, coincidentally, when U.S. Attorney General Eric Holder worked at Covington & Burling, Covington & Burling represented Penny Pritzker's Superior Bank/Coast-to-Coast Financial Corporation before federal regulators.

In addition the Pritzker family that owned Superior Bank before it collapsed in 2001, following its engagement in reckless sub-prime mortgage lending, gave $30 million to the same University of Chicago which has employed federal judge Wood in recent years.

Aren't potential U.S. Supreme Court justices supposed to be free of such apparent conflicts-of-interest issues?

Did Souter have any similar conflicts-of-interest issues that had to be looked into before he was appointed to the U.S. Supreme Court bench?

Ethan Stanislawski

Since Obama was an adjunct at University of Chicago Law School, do you think if he were to appoint someone from the U of C, it would be criticized as a Harriet Miers-like decision regardless of ideology?

My guess is if it was a U of C person perceived as too "left-wing", it will be criticized on the right as a Bush-like move, just as it would by the left if it was someone seen too moderate or conservative.

It's sad to think that political pressure would box out most, if not all, of supremely qualified minds from the University of Chicago Law School.

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