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The Last Conservative

How Souter ended up disappointing conservatives by being ... conservative.

The Supreme Court will lose its only true conservative this summer when Justice David Souter packs up his Volkswagen and drives north one last time. Yes, you read that right. His votes may well have upheld and further entrenched liberal results, but Souter has been the court’s only true judicial conservative for the past 19 years.

When George H.W. Bush’s chief of staff--New Hampshire’s rock-ribbed, right-wing former governor John Sununu--urged his boss to appoint David Hackett Souter to the U.S. Supreme Court, joy erupted across the right wing of the Republican Party. Here was an originalist--a quiet, determined, and dedicated conservative. And he would be replacing William Brennan, the court’s most determined (and successful) liberal voice.

Within a few years, those same supporters would curse Souter’s name. How could this so-called conservative be one of the key votes that upheld the last shreds of Roe v. Wade (in 1992's Planned Parenthood v. Casey)? What sort of conservative would vote against George W. Bush in his Supreme Court battle with Al Gore in the 2000 election? What sort of a conservative rules against prayer in schools (Lee v. Weisman 1992), and votes to end the male-only policy of the Virginia Military Institute (US v. Virginia 1996)?

A conservative justice, that’s who. Souter’s departure offers a timely reminder that when it comes to the courts, we need to be careful about our terms. Though Souter’s decisions were welcomed by ideological and partisan liberals, they were judicially conservative decisions. In fact, his were among the only consistently conservative decisions the court has known for the last two decades.

The reason is that there is a difference between an ideological or movement conservative and a judicial conservative. Judicial conservatives generally have great respect for the law, and for legal decisions that have been made. This is the essence of what is called stare decisis--let the decision stand. Upholding precedent staunches the forces of change--and typically, that generates conservative results. But when the precedent you are upholding is precedent set by the Warren Court, holding back the forces of change means enforcing liberal decisions against radical demands for change from movement conservatives.

From 1953, when Earl Warren joined the Supreme Court, until well into the 1970s, the Supreme Court issued one liberal opinion after another--opinions that enhanced protections for criminal suspects, took the government out of American bedrooms, demanded an end to segregation, insisted on equal protection for women, and identified and enforced a woman’s right to choose abortion.

Asking the Supreme Court to overrule these decisions is anything but judicially conservative--it’s downright radical. And when the judicially conservative David Souter was asked to toe the movement line, he insisted on a very conservative response: No. He alone stood for judicially conservative values, insisting on maintaining and supporting the Court’s own doctrine and decisions. He stood by stare decisis.

For example, in 1989, it was widely assumed that the Supreme Court was ready to reverse Roe v. Wade. Justice Harry Blackmun--who had written the majority opinion in the 1973 abortion decision--warned his brethren that “to overturn a constitutional decision is a rare and grave undertaking. To overturn a constitutional decision that secured a fundamental personal liberty to millions of persons would be unprecedented in our 200 years of constitutional history.”

Three years later, the court took up the case of Planned Parenthood v. Casey. But though they significantly trimmed back the abortion rights articulated in Roe v. Wade, Justice Souter, together with Justices O’Connor and Kennedy, refused to go all the way. Instead, they insisted that “the very concept of the rule of law” requires “continuity over time” and that therefore a “respect for precedent is, by definition, indispensable.” The principles of institutional integrity “and the rule of stare decisis," they wrote, led them to conclude that “the essential holding of Roe v. Wade should be retained and once again reaffirmed.”

Precedent. Stare Decisis. Settled expectations. Love ’em or hate ’em, these are the very foundation of judicial conservativism. They don't lead to ends favored by movement conservatives because, after 40 years of liberal judicial decisions, enforcing precedent and observing stare decisis meant upholding and enforcing liberal decisions. “The Court (and, I think, the country) loses when important precedent is overruled without good reason," Souter wrote in a 2007 campaign finance case.

By contrast, the justices we think of as the genuine conservatives, led most prominently by John Roberts, Samuel Alito, and Clarence Thomas, have made no secret of their eagerness to dump, trash, ignore, overrule, overturn, bury and immolate volume after volume of the Supreme Court’s liberal precedents.

Thomas--a hero for the conservative movement--is more than delighted to revisit and reject precedent where he finds it out of step with a proper reading of the constitution. No less an authority than Antonin Scalia has said of his colleague that Thomas “doesn't believe in stare decisis, period. If a constitutional line of authority is wrong, he would say, ‘Let’s get it right."

Since John Roberts and Samuel Alito joined the Supreme Court, there have been a parade of cases where the court has been quite willing to ignore judicially conservative principles such as stare decisis, and instead radically revise and revisit settled cases in areas ranging from school desegregation (Parents Involved in Community Schools v. Seattle School District) to free speech for students (Morse v. Frederick) to death-sentence appeal rights (Lawrence v. Florida).

It is widely assumed that Bush v. Gore marked the beginning of the end of Souter’s tolerance for all things Supreme. He was said to have been bitterly disillusioned when he saw his colleagues decide that case along blatant partisan lines. What judicial conservative could possibly accept a ruling where the majority insisted the decision was for this case, and this case alone, and should never be cited or mentioned again--"limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.” That’s not law, that’s politics. And it is most certainly not what a conservative judge would do.

Souter was said to have wanted to resign from the court in disgust after Bush v. Gore. Instead, he stuck around and stood up for judicially conservative values. And liberals everywhere owe him a great debt of gratitude. Imagine where we might be today if George W. Bush had been able to right his father’s error, and put a real radical on the court in place of the court’s only true conservative?

Gordon Silverstein is an assistant professor of political science at the University of California, Berkeley. His latest book, Law’s Allure: How Law Shapes, Constrains, Saves, and Kills Politics, was published by Cambridge University Press in February.

By Gordon Silverstein