Posted by Orin Kerr:
The Myth of Justice Souter as a Yankee Republican:
http://volokh.com/archives/archive_2009_05_03-2009_05_09.shtml#1241373223
Some people say that Justice Souter is a Yankee Republican, and that
he seems like a liberal only because the GOP has shifted so far to the
right. In an earlier day, the argument runs, he would have been
considered a Justice on the conservative side. I confess I find this
claim puzzling, and I wanted to offer some thoughts about why.
First, consider the fact that the two Justices who vote most often
with each other on the current Supreme Court are often Justice Souter
and Justice Ginsburg. [1]Looking at the current Supreme Court Term,
for example, the Souter/Ginsburg pairing is in first place: They have
fully agreed with each other in 88% of the time. The next closest
pairings are Scalia/Roberts at 83%, Roberts/Alito at 81%, and
Thomas/Scalia at 79%.
I think it is generally recognized that Justice Ginsburg is not a
Yankee Republican, and that she would not have would have been a
Republican if the GOP had not become more conservative. Everyone
pretty much agrees that Justice Ginsburg is very much a Democrat and
at least somewhere on the left. But if the Souter/Ginsburg pairing is
the closest pairing on the Court, closer than Thomas/Scalia, then
isn't it a little strange to say that one is a liberal Democrat but
the other is a Yankee Republican who only "seems" liberal?
Next, consider the cliche that it's Justice Kennedy's Court, and
that the really big ideological cases are likely to be 5-4. That
cliche has some force because in big ideological cases, Justice Souter
is a safe vote for the liberal side. Souter is part of the "four" on
the left side of the Court that makes Kennedy the swing vote. If
there's a case about affirmative action, abortion, gay rights,
federalism, takings, the Second Amendment, or any other "hot" area,
everyone simply assumes that Justice Souter is voting for the liberal
side. Usually there's no debate on this: You know where Souter is
coming out, because that's where he pretty much always comes out in
the big ideological cases.
Making broad claims of ideology can be tricky business, so a few
caveats are in order. Perhaps Justice Souter has policy views that are
different from his legal views. Or perhaps he has traditionally
Republican views on some policy issues that don't come up in Supreme
Court cases. And there are always various strains within ideologies; A
moderate liberal might seem almost conservative to someone far on the
left. Still, just based on his votes -- which is the usual way to
measure and discuss a Justice's ideology -- it seems to me that
Justice Souter has voted as a reliably liberal Justice.
References
1.
http://www.scotusblog.com/wp/wp-content/uploads/2009/04/justice_agreement1.pdf
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