Is Justice Souter a "Burkean" Conservative?
Prominent constitutional law scholar Michael Dorf claims that Justice Souter's jurisprudence is not really liberal. Instead, he argues that Souter should be considered a "Burkean" conservative:
[W]hat should we make of the characterization of Souter as a liberal [by John McGinnis]? I am quoted in the same National Law Journal article [link inserted by IS] describing Souter as a conservative, albeit a very different sort of conservative than Justice Scalia--and for that matter, Justices Thomas, Roberts and Alito. Perhaps I can explain what I meant with an analogy to the battle now raging over the future direction of the Republican Party and conservatism more generally.
The media have tended to describe the intra-Republican/conservative fratricide as pitting purists against pragmatists. But that framing of the debate, in my view, concedes far too much ground to the hard right, the self-described true conservatives, for it is only very recently that much of what we now associate with conservatism became the orthodox conservative view: Economic libertarianism; international unilateral interventionism; and state enforcement of traditional morality. New England/Rockefeller Republicans represented an older, more moderate brand of conservatism in the literal sense: dedicated to conserving the best of the status quo, and thus cautious about, though not irresolutely opposed to, change. David Souter was and is very much part of that older tradition.
Likewise in jurisprudence, conservative true believers (like McGinnis) now talk as though originalism is and always was the only legitimate and certainly the only conservative methodology. Yet originalism as now espoused is a relatively recent creation, dating roughly to the beginning of the Reagan Administration. Before that, the epitome of judicial conservativism was the second Justice Harlan, who greatly valued precedent, supported civil rights, and dissented from what he regarded as those Warren Court decisions that went too far too fast. He was not, however, a conservative in the current sense...
Justice Souter admired Justice Harlan and there are clear traces of Harlan in Souter's body of work. Souter respects precedent and tradition but does not fetishize either.
Dorf is right to suggest that Justice Harlan was a conservative of sorts, and that his jurisprudence might be considered a conservative alternative to that of Scalia and others. However, Dorf is wrong in claiming that Souter's work is similar to Harlan's in that sense. Harlan can be considered a conservative because he dissented from many of the Warren Court's major liberal constitutional decisions, such as Miranda v. Arizona and Baker v. Carr. By contrast, Justice Souter has voted with the liberal side on virtually every important contested constitutional issue that has come before the Court during the last 16-17 years of his tenure. On affirmative action, federalism, property rights, the death penalty, separation of powers, campaign finance, and just about every other constitutional question, Souter was a consistently reliable liberal vote.
Souter did vote with the conservatives on a few disputed constitutional cases during his first year or two on the Court (e.g. - New York v. United States, an important federalism case); but that period apparently came before his migration to the liberal side was complete. He has not voted with the conservatives on any major contested constitutional case since then (by which I mean a case that wasn't decided by an overwhelming margin such as a 9-0 or 8-1 vote). Souter's votes during that period are largely indistinguishable from those of the Court's liberal Democratic-appointed justices, such as Ginsburg and Breyer. Perhaps Dorf considers them to be "Burkean conservatives" as well. But that would stretch the concept so far as to rob it of any useful content.
Souter also cannot be considered a "Burkean conservative" because he showed little if any deference to precedent or tradition when these conflicted with liberal jurisprudential goals. For example, he voted to set aside longstanding precedent and tradition in gay rights and death penalty cases. It's hard to find even one important constitutional case where Souter voted against a position preferred by liberals because he thought it went too far in rejecting tradition or precedent. If Burkean conservatism has any meaningful content at all, it is a strong presumption in favor of the validity of longstanding traditions and hostility to rapid change.
I don't mean to criticize Souter for not being a Burkean conservative. To the contrary, I have been very critical of Burkean conservatism myself. In my view, Burkean conservatives pay far too much deference to tradition and sometimes underestimate the benefits of rapid change (especially when the status quo is very bad). I believe that Souter was wrong about many constitutional issues; but not because he rejected Burkean conservatism.
Be that as it may, Souter's jurisprudence was far from being Burkean. To steal a line from Lloyd Bentsen, I serve on the same blog with Burkean conservatives; I know Burkean conservatives; many Burkean conservatives are friends of mine. And Justice Souter is no Burkean conservative.
NOTE: In my discussion of Justice Souter's voting record, I have excluded from consideration cases that were decided unanimously or nearly so (8-1). Like most scholars, I don't consider these types of cases to be useful tests of a justice's ideological leanings, because their lopsided nature suggests that jurists from across the political spectrum would decide them the same way. Likewise, I exclude cases from a few constitutional fields (e.g. - punitive damages) on which both liberal and conservative justices are internally divided. These cases aren't good tests of ideology because they tend to divide the justices on nonideological grounds. It is noteworthy, however, that in the punitive damages cases, Souter voted with the five justice majority that that supported judicial intervention to curb "excessive" damage awards - despite the fact that this result expanded judicial power without warrant in tradition or precedent for doing so. There might be a "conservative" rationale for this outcome; three conservative justices, including Chief Justice Rehnquist, voted the same way. But it certainly wasn't a Burkean conservative vote.
UPDATE: I should perhaps have noted that Justice Souter did vote with conservatives against other liberals in a few closely divided Fourth Amendment cases, of which the best known is probably Atwater v. Lago Vista. In the original post, I wrote that Souter "has voted with the liberal side on virtually every important contested constitutional issue that has come before the Court during the last 16-17 years of his tenure." Atwater, in my judgment, fails the "important" requirement. Like most Fourth Amendment search and seizure cases, it is narrowly focused on a particular fact pattern (in this case, whether officers could arrest a suspect whom they had probable cause to believe had commited a criminal offense punishable only by a fine). It also fails the "important" criterion because arrests for very minor offenses of this type are rare. However, I acknowledge that other commentators might rate Atwater's importance higher than I do.
If so, Atwater would be a genuine exception to the pattern I describe. But not nearly a big enough exception to invalidate my conclusion. After all, Justice Scalia has voted with liberals against other conservatives in a few well-known Fourth and Sixth Amendment cases. No one contends that this handful of cases proves that he's really a liberal, when viewed in the context of his overall record.