Saturday, May 2, 2009

Justice Souter's Legacy and the Eleventh Amendment: Saturday Evening Review

Certainly there is - - - and will be - - - much to say about Justice David Souter and his legacy on the United States Supreme Court.   [Update: e.g., Linda Greenhouse in NYT here; Kermit Roosevelt in Slate here; The Nation here].


One place to start is the book David Hackett Souter by Tinsley Yarborough, published by Oxford University Press in 2005.  Subtitled "Traditional Republican on the Rehnquist Court," the book contends that despite Souter's reputation as a disappointment to traditional Republicans, Souter is indeed both traditional and Republican in his life and his jurisprudence.

Regardless of politics, Souter's reputation amongst many ConLaw profs and students is as a erudite historian.  This is exemplified by many of his opinions in Eleventh Amendment cases.  In Seminole Tribe of Florida v. Florida, 517 US 44 (1996), Souter's lengthy dissenting opinion, joined by Ginsburg and Breyer, is an extended exegesis on the history of the Eleventh Amendment.  Souter concludes that "neither text, precedent, nor history supports the majority's abdication of our responsibility to exercise the jurisdiction entrusted to us in Article III" and his nearly 40 page argument is as thorough as one can find anywhere in the United States reporter.   Interestingly, while Souter is often set against the conservative originalists, the Eleventh Amendment context displays Souter's strong originalist and historical fealty. In his nearly as long dissenting opinion in  Alden v. Maine,  527 U.S. 706 (1999), in which the majority found that the FLSA could not be applied to the states under the Eleventh Amendment, Souter remarks that state sovereignty has all of the hallmarks of a “natural” right - - - “a universally applicable proposition discoverable by reason.”   Id. at 716. 

Scholars have taken up Souter's project in Eleventh Amendment scholarship.  In Statehood As The New Personhood: The Discovery Of Fundamental “States' Rights," 46 William and Mary Law Review 213 (2004), Timothy Zick extended Souter's observation about the "natural" rights of states into an article arguing that the Court has extrapolated individual rights such as those flowing from the Bill of Rights and Fourteenth Amendment into rights that States possess.  Zick contends that

fundamental “states' rights,” unlike the sovereign rights of existence, separateness, participation, and interpretive independence, are not contained in any constitutional bill of rights for states:  They are, like individuals' fundamental rights to such things as “privacy” and “liberty,” judicial extrapolations from the penumbras of these basic sovereign rights. This, among other things, distinguishes fundamental “states' rights” from both the power calculus version of “states' rights” and the idea that the Constitution itself preserves certain minimal rights of state sovereignty.  As a result of recent Court decisions, states now enjoy fundamental rights to intimate association, equality, physical autonomy, mental autonomy, and due process. States, therefore, like persons, enjoy a measure of liberty in ordering and arranging their intimate affairs. With respect to immunity from lawsuits, states are entitled to be treated as more than second-class sovereigns, just as the Constitution's equality guarantees prohibit government from creating lower-status persons.

Two other articles bear reading.  Recently published, The Supreme Court's Confusing State Sovereign Immunity Jurisprudence, 56 Drake L. Rev. 253 (2008) by Scott Fruehwald is essentially an argument that Souter is correct - - - at least for the most part.  Much of Fruehwald's argument relies and quotes Souter's opinions.  However, Fruehwald argues that in Nevada Department of Human Resources v. Hibbs, 538 U.S. 721, (2003), the Court wrongly allowed Congress to apply FMLA to the states, resulting in a remedy that is not congruent and proportional to the evil.  He asks "how is requiring twelve weeks of unpaid leave congruent and proportional to the evil of discrimination against women on the basis of pregnancy?"   Souter joined that Court's (correct to my mind) opinion in that case, although Souter concurred specially to make it clear he did not concede the position expressed in his previous dissenting in views in Seminole Tribe.  Additionally, Andrew Coan's essay, Text As Truce: A Peace Proposal For The Supreme Court's Costly War Over The Eleventh Amendment, 74 Fordham L. Rev. 2511 (2006), seeks to not "take sides" in the warring opinions regarding the Eleventh Amendment but to direct the contestants back to the text of the Eleventh Amendment.  Yet given his conclusion that Seminole Tribe was incorrectly decided and should (like similar cases) be overruled, he too is arguing that Souter is correct. 

Of course, Souter's legacy extends far beyond Eleventh Amendment jurisprudence.  But in many ways, his work on the Court's Eleventh Amendment cases evidences his well-known historical expertise.


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Justice Souter was known as the "stealth justice" at the time of his appointment. While, early on, that referred to his lack of a written records, later it has come to reflect his ability and gift to write well crafted opinions that still leave many readers wondering whether Justice Souter's ideology is liberal, conservative, or right down the middle.

Posted by: Alin Cintean | Jul 2, 2010 10:34:35 PM

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