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Ralph Rossum on Sotomayor and Souter:

Interesting--and colorful--column by Professor Ralph Rossum comparing Sotomayor and Souter. Rossum argues that even though their voting patterns are likely to be similar, the most notable element of Souter as Justice was his inconsequentialness:

There is every reason to believe that Sotomayor will be an equally reliable member of the liberal team. The crucial question, however, is whether the Souter seat she is assuming will remain at the end of the bench.

The question is crucial because, while Souter added "bench strength" for the liberal team, he was seldom assigned to write the majority opinion. Some statistics: Since Souter's elevation to the bench in 1990 through the end of the last court's term, the Supreme Court has handed down 1,587 decisions. Souter has written the majority opinion in only 135 of them --considerably below the average of 182 majority opinions for his other eight colleagues.

And, Souter has been given the "low hanging fruit": over 53 percent of his majority opinions have been in noncontroversial unanimous decisions. In 5-4 decisions in which Souter has been in the majority, he has been assigned the majority opinion only 22 times and 13 of those 22 have involved questions of statutory construction -- less momentous than questions of constitutional interpretation. Only nine times has he been assigned the writing of the majority opinion in 5/4 constitutional decisions; just one is worthy of comment: In McCreary County v. ACLU (2005), he held for the five-member liberal majority that the Establishment Clause "mandates governmental neutrality between religion and nonreligion" and on that basis banned the posting the Ten Commandments on the wall of a county courthouse; his argument, however, was so unpersuasive that he could not keep that five-member majority together in the companion case of Van Orden v. Perry in which the court held it was constitutional for Texas to inscribe the Ten Commandments on a monument placed before its statehouse.

In other words, I think Ralph is asking whether Sotomayor will turn out to be an intellectual leader or follower on the Court. He sees Souter as an intellectual follower--an assessment that I share.

Of course, Ralph's not the only one asking that question.

Whadonna More:
"Intellectual leader" seems like a synonym for the ever flexible "activist".
5.27.2009 2:59pm
Hoosier:
"the most notable element of Souter as Justice was his inconsequentialness"

Amen to that. When listing the nine members of SCOTUS for my students, I'd always have brain-lock on the ninth. Then it hits me: "Oh yeah! Forgot about him."
5.27.2009 3:06pm
civics concerns:
Todd-

I don't know what you teach, but if it's anything in the civics or law realms, it's pretty sad that you EVER could not name a sitting member of the court.
5.27.2009 3:08pm
civics concerns:
Rather, that last comment should have been addressed to "Hoosier," not Todd.
5.27.2009 3:09pm
Thrax (mail):
Gosh. I wonder if it's possible that Souter was assigned fewer than average majority opinions because he didn't join the majority as often as some justices.

In other words, without a comparison to the rate at which, say, Justice Stevens was assigned majority opinions, this means nothing. Nor is it any secret that, in fragile five-justice majority coalitions, the centermost (i.e., the most conservative of a liberal coalition, or the most liberal of a conservative coalition) justice disproportionately gets assigned to write, lest an opinion from a justice farther out on the wings cause that centermost justice to jump ship. Nor is it news that justices in the court's ideological minority disproportionately get assigned noncontroversial unanimous opinions where, in the majority's view, they can do less damage.

A pointless and evidence-free slam on Justice Souter, in other words.
5.27.2009 3:15pm
Anonymous1:
Um, Atwater v. Lago Vista is not "worthy of note"? That case was, and is, dramatically more important than any Establishment Clause case.
5.27.2009 3:17pm
Anderson (mail):
More Souter-bashing. The criticism that judges should be celebrities, rather than deciding cases, continues to rebound upon the critics.
5.27.2009 3:18pm
Nunzio:
The problem with Souter is that for a guy who doesn't own a t.v. and is an avid reader, his writing is dull, even for judicial writing.
5.27.2009 3:28pm
Anon321:
We like to say that we want humble jurists who apply the law faithfully and have great respect for precedent and tradition, abjuring grand revisions to settled principles. We want jurists who know that people don't come to the game to see the umpire -- who should remain unseen and anonymous as much as possible. But when a jurist actually fits that mold, we dismiss him as an inconsequential mediocrity. We say we want a cautious, reserved, case-by-case approach, but when we get it, we scoff and reveal that what we really want is a sweeping, hard-edged Grand Theory, espoused by someone with supreme self-confidence and no inclination to reconsider.

I always thought that Souter was terribly underrated. His writing, while sometimes lacking in style and wit, was usually very clear and logical. It's sad to see him being written off now, particularly when he embodied so many of the traits that we claim to admire. (And the part above about his McCreary County opinion being "so unpersuasive that he could not keep that five-member majority together in the companion case" seems like a cheap shot. Justice Breyer has his own idiosyncratic views of Ten Commandment cases like that, and it was those views, rather than the strengths or weaknesses of Souter's opinion, that caused the different outcomes.)
5.27.2009 3:39pm
Hoosier:
civics concerns

I teach European diplomatic history. And I listen to Grunge. That's pretty much all that I do. So, perhaps no surprise about the Souter-thing?

"pretty sad" I'll grant you. But for different reasons. I mean, crap, I don't even like diplomatic history. But I suck at Guitar-Hero.
5.27.2009 4:31pm
Perseus (mail):
In other words, I think Ralph is asking whether Sotomayor will turn out to be an intellectual leader or follower on the Court. He sees Souter as an intellectual follower--an assessment that I share.

Even if true, isn't there something to be said for having some Indians and not so many chiefs?
5.27.2009 4:46pm
Commentor (mail):
Anon321,

Amen. Rossum's criticism seems to be that the most activist judges are the most consequential. Souter did his job and voted in each case; no five member majority in which he was included would have existed without him.

As a supposedly conservative appointee, the fact that he joined so many liberal opinions is surely quite consequential.
5.27.2009 6:44pm
krs:
I agree with Anderson. Souter was unassuming, and many people seem to mistake that for "inconsequential."

It's unfortunate that much of the lay public believes that only 5-4 decisions on controversial social issues matter. It's even more unfortunate when an academic signs on to that view.
5.27.2009 6:47pm
Roy Englert:
Professor Rossum's analysis is riddled with errors. Just for starters, Justice Souter has written the lead opinion in 157 cases (not 135) out of 1517 decided by signed opinions during his time on the Supreme Court. The average for other Justices is 170, not 182. Justice Souter has been very slightly below average (157 vs. 170, not 135 vs. 182) by this measure, which in any event has very little meaning.

For anyone who wants to check, here are the numbers (Term/cases disposed of by signed opinions/Souter lead opinions): OT90/112/8; OT91/109/13; OT92/107/10; OT93/84/8; OT94/82/9; OT95/75/8; OT96/80/8; OT97/91/10; OT98/77/7; OT99/73/8; OT00/77/8; OT01/75/8; OT02/72/8; OT03/72/9; OT04/74/8; OT05/69/7; OT06/68/7; OT07/67/7; OT08 (to date)/53/6.
5.27.2009 7:26pm
MEANINGLESSTAT (mail):
It is striking to me how numbers are being misused in the political debate over Supreme Court justices. The number of assigned majority opinions is meaningless without much, much more context than what is provided. I also enjoy people trotting out the number of times that an appeals court judge has been reversed by SCOTUS. So what? All that means is that in xx% of cases the appeals court judge would not have joined the SCOTUS majority. Unless a judge is routinely getting reversed by 9-0 opinions on simple legal matters or getting reversed for ethical issues, then reversal rate doesn't amount to a hill of beans. There are plenty of merits to engage on. Let's start there, not with misleading or even erroneous numbers.
5.27.2009 9:47pm
krs:
Following Roy Englert's comments, if one looks at any of Tom Goldstein's stat packs, it appears that the Court tries to give each Justice 1/9 of the majority opinions, spread out evenly by month, except that the numbers don't work out exactly because the court doesn't hear an exact multiple of 9 cases per term.

Looking at the numbers in Roy Englert's comments, it appears that in no term except OT 90 (his first term on the court) has Justice Souter been more than one opinion away from writing a 1/9 share of the lead opinions and his deviation from the "average" is therefore likely largely explained by the fact that the number of signed lead opinions issued by the Court usually isn't evenly divisible by 9.

Here's how the numbers would come out term by term if the Court cared about nothing other than evenly dividing up the lead opinions:

OT90: 112/9 = 12 4/9 -- 5 Justices should write 12 opinions and 4 should write 11. Justice Souter's 8 opinions are an aberration, perhaps explained by the fact that it was his first term.

OT91: 109/9 = 12 1/9 -- 8 Justices should write 12 opinions each and 1 should write 13, as Justice Souter did.

OT92: 107/9 = 11 8/9 -- 8 Justices should write 12 opinions and 1 should write 11. Justice Souter's 10 doesn't seem strange.

OT93: 84/9 = 9 1/3 --- 6 Justices should write 9 opinions and 3 should write 10. Justice Souter's 8 doesn't seem strange.

OT94: 82/9 = 9 1/9 --- 8 Justices should write 9 opinions (as Justice Souter did) and 1 should write 10.

OT95: 75/9 = 8 1/3 --- 6 Justices should write 8 opinions (as Justice Souter did) and 3 should write 9

OT96: 80/9 = 8 8/9 --- 8 Justices should write 9 opinions and 1 should write 8 (as Justice Souter did)

OT97; 91/9 = 10 1/9 --- 8 Justices should write 10 opinions (as Justice Souter did) and 1 should write 11.

OT98: 77/9 = 8 5/9 --- 5 Justices should write 9 opinions and 4 should write 8. Justice Souter's 7 opinions doesn't seem strange.

OT99: 73/9 = 8 1/9 --- 8 Justices should write 8 opinions (as Justice Souter did) and 1 should write 9.

OT00: 77/9 = 8 5/9 --- 5 Justices should write 9 opinions and 4 should write 8 (as Justice Souter did).

OT01: 75/9 = 8 1/3 --- 6 Justices should write 8 opinions (as Justice Souter did) and 3 should write 7.

OT02: 72/9 = 8 --- Every Justice should write 8 opinions (as Justice Souter did). Justice Souter wrote 9.

OT03: 72/9 = 8 --- Every Justice should write 8 opinions; Justice Souter wrote 9.

OT04: 74/9 = 8 2/9 --- 7 Justices should write 8 opinions (as Justice Souter did) and 2 should write 9.

OT05: 69/9 = 7 2/3 --- 6 Justices should write 8 opinions and 3 should write 7 (as Justice Souter did).

OT06: 68/9 = 7 5/9 --- 5 Justices should write 8 opinions and 4 should write 7 (as Justice Souter did).

OT07: 67/9 = 7 4/9 ---5 Justices should write 7 opinions (as Justice Souter did), and 4 should write 8.

Given these numbers, it appears that Justice Souter got his share of opinions pretty much every term. If he got one fewer opinion this term or that term, I suspect it might be because he was a relatively junior Justice for most of his career.

[I haven't triple-checked, so there may be a typo or an error or 2]
5.28.2009 12:10am

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