Posted by Todd Zywicki:
Ralph Rossum on Sotomayor and Souter:
http://volokh.com/archives/archive_2009_05_24-2009_05_30.shtml#1243450370
Interesting--and colorful--column by [1]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.
References
1.
http://www.ocregister.com/articles/souter-liberal-majority-2428833-court-team
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