Souter? I barely knew her

Another very interesting Supreme Court related article (via Tapped), this time courtesy of Professor David Strauss and the Chicago Tribune (if you don't have or feel like registering for a Chicago Tribune account, I'd bet bugmenot could help you). It's main point is to debunk the theory of Justices becoming more liberal upon reaching the Court and surprising the President who appointed them. In this vein, the article notes that Presidents are essentially never surprised by the Justices views on issues the President had concerned himself with in making the appointment, but rather surprised by new issues coming before the Court which they had not considered in slecting a Justice. That part was interesting, but sort of well known.

More interesting is its discussion of how Souter, and especially Stevens, were not liberals relative to the political specturm at the time of their Supreme Court appointment, but rather have come to be among the most liberal members of the Court as the entire American political spectrum and arena of debate have shifted somewhat to the right.

The examples provided of how Stevens is not as liberal as previous liberal Justices are quite interesting. For instances:

-In 1974, the U.S. Supreme Court declared capital punishment, as it was then practiced in the United States, unconstitutional. The court later allowed states to amend their laws and reinstate capital punishment, but three justices--William Brennan, Thurgood Marshall, and, later in his career, Harry Blackmun--insisted that capital punishment was unconstitutional in all circumstances. Stevens and Souter have consistently rejected that view.

- In 1973, four justices--not quite enough to carry the court--concluded that it was unconstitutional to fund public education through local property taxes when the result was that rich school districts spent far more, per pupil, than poor school districts. Neither Stevens nor Souter has taken that position.

- On abortion, the issue that has attracted the most attention, Stevens and Souter--the supposed liberals--have always been significantly more conservative than Brennan, Marshall and Blackmun were. A few years after Roe vs. Wade, the court ruled that the government could refuse to allow Medicaid funds to be used for abortions. Brennan, Marshall and Blackmun bitterly dissented. Stevens did not join them; characteristically, he took an independent, moderately conservative position, saying that Medicaid funds could be denied for most abortions but not for medically necessary abortions.