Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: MONDAY, July 4, 1994 TAG: 9407040037
SECTION: NATIONAL/INTERNATIONAL PAGE: A1 EDITION: HOLIDAY
SOURCE: DAVID G. SAVAGE LOS ANGELES TIMES
DATELINE: WASHINGTON LENGTH: Medium
"Justice Cardozo once cast the dissenter as `the gladiator making a last stand against the lions.' Justice Scalia's dissent is certainly the work of a gladiator but he thrusts at lions of his own imagining," Souter said dryly.
It may be hard to imagine the soft-spoken New Hampshire jurist as a lion-tamer, but perhaps the most significant trend in the court term that ended last week was Souter's rise to challenge the hard-charging conservatives on his right and his success in pushing them aside in most of the key cases.
The result was a court increasingly likely to fashion moderate-to-liberal rulings, with Souter quietly emerging as its new leader.
Lawyers on both sides of the ideological spectrum point to Souter as a growing force, a surprise for a little-known judge who was derided as the "stealth candidate" when President Bush selected him in 1990.
"Souter is emerging as the liberal leader in the post-Blackmun era," says Clint Bolick, counsel to the conservative Institute of Justice.
"His stature, competence and confidence seems to grow from term to term. He is becoming a real leader," adds Steven R. Shapiro, national legal director for the American Civil Liberties Union. Thanks in large part to Souter, the just-completed term was a "surprisingly successful" one for civil liberties, he said.
In the term that ended Thursday, the justices interpreted the Constitution to say that religious groups may not be given political power, that potential jurors may not be excluded because of their gender, that the government cannot seize a home in a drug case without a hearing, that cities cannot bar a homeowner's display of a protest sign, and that prison officials can be forced to pay damages if they deliberately ignore a clear risk to the health of their inmates.
In cases involving federal laws, the justices made it easier for victims of sexual harassment to win damages from their employers, said abortion protesters who use violence can be sued under the anti-racketeering law, and ruled that the Civil Rights Act of 1991 does not apply to cases that were pending before it was enacted.
For conservatives, the biggest victories came in the area of property rights. The Constitution does not allow officials to demand a piece of property in exchange for a building permit, the court said on a 5-4 vote, unless they can prove this exaction is closely linked to the burden imposed by the expanded development. In addition, the court insisted that state judges examine a jury's punitive damage verdict to make sure the amount is not excessive.
Souter's growing strength may be especially important as the court undergoes transition. Thursday marked the last day for 85-year-old Justice Harry Blackmun, who retired after 24 years at the high court. If all goes as expected, he will be replaced in October by President Clinton's second nominee, Judge Stephen Breyer of Boston.
In May, White House counsel Lloyd Cutler boasted that Breyer had the experience and skill to be a coalition builder on the high court. But privately, some administration attorneys admit that Souter is likely to be a stronger, more effective voice in behalf of civil rights and individual liberties.
In her first term, Justice Ruth Bader Ginsburg followed a moderate-to-liberal approach similar to Souter's. Along with Breyer and veteran John Paul Stevens, the four could form a solid coalition.
Just a few years ago, it looked as though the rapid succession of new conservative appointees could push the law sharply to the right. Presidents Reagan and Bush said they wanted to see the court reject the right to abortion, permit prayer in schools and cut back on the rights of criminal defendants. In William Rehnquist, they had a chief justice committed to those goals.
But several Reagan-Bush appointees have disappointed conservatives: Souter in particular and Anthony M. Kennedy to some degree. In June 1992, they stunned their conservative colleagues by joining with Justice Sandra Day O'Connor to strongly reaffirm the Roe vs. Wade ruling and to strike down a public school graduation prayer that was led by a cleric.
Since then, the court has steered a mostly center course, if anything moving slightly left. More often than not, the strict conservatives - Scalia, Rehnquist and Clarence Thomas - find themselves in dissent.
There are no sound bites in a typical Souter opinion. He can be a turgid writer and, sometimes, both sides claim victory after reading his decision.
But his careful approach also draws the support and respect of his fellow justices.
by CNB