Informação enviada pelo Prof Farlei Martins da Ucam
The New York Times
May 8, 2009
To Replace Souter, Obama May Go Bolder
By ADAM LIPTAK
WASHINGTON — A couple of days ago, Fred R. Shapiro, the editor of The Oxford
Dictionary of American Legal Quotations, asked constitutional law scholars
for memorable quotations from Justice David H. Souter of the Supreme Court.
Mr. Shapiro got only four responses. One was about television coverage of
the court (“The day you see a camera come into our courtroom, it’s going to
roll over my dead body”). Another concerned the limited pleasures of reading
legal briefs rather than serious books (“I find the workload of what I do
sufficiently great that when the term of court starts I undergo a sort of
annual intellectual lobotomy”).
Just two quotations came from the hundreds of opinions that Justice Souter,
who is retiring in June, wrote in his 19 years on the court. Neither had
much juice to it.
Writing zingers is, of course, not an important qualification for the job of
Supreme Court justice. But the absence of memorable writing in Justice
Souter’s work reflects a wariness of grand theories and the consensus among
admirers and detractors alike that his influence is likely to be limited.
In replacing Justice Souter, President Obama will almost surely pick another
liberal. But Mr. Obama may also consider Justice Souter as a kind of
counterexample and choose a bigger and bolder figure, one who sets agendas,
forges consensus and has a long-term vision about how to shape the law.
Legal scholars have praised Justice Souter’s care, candor and curiosity. But
they have said that he is, by temperament and design, a low-impact justice
devoted to deciding one case at a time, sifting through the facts and making
incremental adjustments in legal doctrine to take account of them.
Other justices have had more impact, gaining influence through personal and
Justice Souter filled the seat left vacant by Justice William J. Brennan, a
liberal lion who was also a master tactician. The first rule of the Supreme
Court, Justice Brennan would say, holding up his open hand, is to get to
five — meaning persuading five of the nine justices. Justice Brennan also
took the long view, planting seeds in bland footnotes in the hope they would
take root in other cases years later.
Other justices have gained influence through intellectual combat and
commitment to a judicial philosophy. Justice Antonin Scalia’s views about
the importance of adhering to the text and original meaning of the
Constitution and statutes, for instance, has come to dominate conservative
“The replacement to Souter is not going to make an ideological majority for
progressives,” said Abner J. Mikva, a former federal judge who taught with
Mr. Obama at the University of Chicago. “The new justice has got to be
someone who can persuade Kennedy and maybe even Alito.” Justice Anthony M.
Kennedy is the court’s swing justice; Justice Samuel A. Alito Jr., a
conservative, is its newest member.
Mr. Mikva said the other members of the court’s liberal wing — it includes
Justices Stephen G. Breyer, Ruth Bader Ginsburg and John Paul Stevens — had
not been up to the task. “Justice Breyer and Justice Ginsburg are good
justices,” he said, “but they can’t lead. They can’t bring people with
If that is so, it has not been for lack of trying. Justice Breyer, in
particular, has been an active intellectual adversary of Justice Scalia on
the bench and in his book, ”Active Liberty,” which said the goal of
constitutional interpretation should be to enhance democratic participation.
But Justice Breyer is a liberal in a different mold from larger-than-life
figures like Justice Brennan, Justice Thurgood Marshall or Chief Justice
Earl Warren, who led the court through what many liberals consider a golden
It is not clear, though, who might step into that role now. The lower courts
are filled with judges appointed by Republican presidents or by President
Bill Clinton, who tended to appoint moderates. Should Mr. Obama want a big
liberal voice, he might have to look to the legal academy. Kathleen M.
Sullivan and Pamela S. Karlan, both professors at Stanford Law School, are
often mentioned as possibilities.
Justice Souter arrived at the court in 1990 as a presumptive conservative
put there by President George Bush. Just two years later, he helped write a
joint opinion with Justices Kennedy and Sandra Day O’Connor in Planned
Parenthood v. Casey reaffirming the core constitutional right to abortion
identified in Roe v. Wade in 1973.
Justice Souter went on to disappoint his conservative patrons in countless
other cases. Indeed, had he been the conservative that Republicans were
hoping for, scores of important 5-to-4 decisions in the last two decades
would have flipped the other way, and a solid conservative majority would
have fundamentally reshaped the court’s docket as well.
“Roe would have been overruled,” said Geoffrey Stone, a law professor at the
University of Chicago, “and many more of the Warren Court decisions would
have been completely undermined.”
Similarly, it is a little glib to say that Mr. Obama will not reshape the
basic dynamic of the court in appointing a liberal replacement for a liberal
justice. If nothing else, Mr. Obama has the opportunity to replace Justice
Souter, who is 69, with someone perhaps two decades younger, meaning that
the justice’s seat is likely to remain a liberal one for a long time.
John O. McGinnis, a conservative law professor at Northwestern, said Mr.
Obama should be looking for Justice Souter’s opposite in one respect.
“Justice Souter shows negatively the importance of trying to find a very
good writer,” Professor McGinnis said. “That is a hugely important
But Mr. Shapiro, the editor of the book of legal quotations, said Justice
Souter’s shortcomings were not unique.
“The contemporary Supreme Court is woefully lacking in eloquence,” Mr.
Shapiro said. “Justice Souter, despite being an intelligent jurist with a
wry sense of humor, is as eloquence-challenged as the others, and there are
few memorable lines in his opinions.”
Even Justice Souter’s resignation letter was punctilious and reserved. In
her own resignation letter in 2005, Justice O’Connor said she left with
“with enormous respect for the integrity of the court and its role under our
Justice Souter invoked nothing that grand. Instead, he told Mr. Obama that
was retiring “under the provision of 28 U.S.C. Section 371(b)(1), having
attained the age and met the service requirements of subsection (c) of that
section.” He appeared to have signed it in fountain pen, in script that
would not have looked out of place on the Declaration of Independence.