Souter: The New Justice Remains a Mystery

When U.S. Supreme Court justices returned to the bench earlier this month, they did so amidst much uncertainty. Some observers say the Court is poised to move in new judicial directions on several key constitutional issues, as evidenced by several deeply divided rulings handed down in the past two years. But the biggest question before the Court is David Souter and the impact he could have on it.

After a week of congressional hearings, Souter revealed little about his views on two of the most volatile issues facing the nation: abortion and church/state conflicts. In Souter’s career as a prosecutor and judge, he dealt with only a few cases that touched on those controversial constitutional issues. Despite intense questioning, observers from all sides could discern no consistent pattern of judicial philosophy.

“He’s still the ‘stealth candidate,’ but for who, we’re not sure,” said Americans United for Life (AUL) general counsel Clarke Forsythe. Souter told the senators, “I have not made up my mind [about Roe v. Wade], and I would not go on the Court saying I must go one way or I must go the other way.” He added he would keep an “open mind” about each abortion case.

No Consensus

Abortion-rights advocates and several liberal activist groups opposed the confirmation of Souter, as did Howard Phillips of the Conservative Caucus. Concerned Women for America and the American Conservative Union came out in favor of his nomination.

Justice Sandra Day O’Connor, in a speech at Stanford University, acknowledged Souter is very much an “unknown quantity.” In keeping with that view, many groups have opted for caution, refraining from taking a position either way.

There is little disagreement, however, that the high court is at a pivotal stage. “When you get a new justice, it’s more than a new justice,” O’Connor said. “You get a new Court. In ways that are subtle and not so subtle, we change.”

Obviously, one of the most closely watched areas that could be ripe for change is abortion law. Yet, experts agree, any significant movement on Roe v. Wade is not imminent. As of now, the justices have just one abortion-related case on the docket for this term, Rust v. Sullivan. In that case, scheduled to be argued next month, the Court will determine the constitutionality of federal regulations enacted during the Reagan administration that separate abortion from the nation’s family-planning program.

Under the Title X regulations, family-planning clinics that receive government funds are prohibited from offering abortion counseling or referrals. Abortion services are to be kept “physically and financially separate” from the family-planning facilities (CT, Sept. 4, 1987, p. 56), according to the regulations. They were challenged in four states by organizations that include Planned Parenthood and the National Family Planning and Reproductive Health Association.

Although the solicitor general has urged in a brief that the Court use this case to overturn Roe, most observers doubt that will happen. “On the face of it, this doesn’t go directly to Roe because it involves merely the public funding of abortion,” said the AUL’s Forsythe. In the past, the Court has upheld bans of public funding of abortion. However, Forsythe said that if the justices uphold the regulations, “it will further strengthen the hands of Congress, the administration, and the states” in regulating abortion services and funding.

One other case, United Auto Workers v. Johnson Controls, could have limited impact on the abortion debate as well. Essentially an employment battle, the case involves the propriety of a company’s ban on the hiring of women of childbearing age for jobs that could be harmful to a fetus. “It will be interesting to watch, especially to see any concerns Justices O’Connor and Souter might have on the reasonableness of a policy to protect the unborn,” Forsythe said.

Church/State Issues

In the church/state arena, while the justices have been showing signals of wanting to head in a new direction, experts say that direction will not become clear anytime soon. The Court to date has accepted no major church/state cases this term. “There just aren’t a lot of firecrackers going off now,” said John Whitehead, president of the Rutherford Institute, a law firm specializing in religious-liberties cases.

Religious groups were shocked and dismayed last term when the justices used the Smith peyote case to give states more power to restrict unusual religious practices when they come into conflict with state law (CT, July 16, 1990, p. 48). If Souter takes a similar view of the free exercise of religion, Whitehead said, “We would be very disappointed.”

Souter’s position on government accommodation of religion will also be important, according to Baptist Joint Committee associate general counsel J. Brent Walker. “There are four [justices] up there who have expressed a desire to … allow more government encouragement of religion,” he said.

Walker said his organization, which favors strict separation between government and religion, is concerned about what policies might evolve, but believes wholesale judicial change will not come this term. Said Walker, “I don’t see on the horizon anything that even comes close to last term, but something still might explode that blows us out of the water.”

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