- The Washington Times - Saturday, May 2, 2009


If conservatives thought they had their man when David H. Souter joined the Supreme Court in 1990, that opinion likely changed in 1992 when the justice voted to preserve the landmark Roe v. Wade decision giving women the right to end their pregnancies.

The court fell a vote short of overturning Roe.

Justices Souter, Sandra Day O’Connor and Anthony M. Kennedy wrote a controlling opinion that barred states from flatly outlawing abortion, but upheld restrictions in a Pennsylvania law that gave states new power to make it tougher for women to end pregnancies.

The middle ground reflected a justice who was not always predictable - but one who initially was considered moderately conservative, and became reliably liberal on social issues.

Justice Souter ruled that public displays of the Ten Commandments violated the Constitution.

He issued a harsh dissent in a case that upheld the death penalty.

Yet, he voted to bar gays from Boston’s St. Patrick’s Day parade and supported the drastic reduction of damages in the Exxon Valdez oil spill disaster.

Here are some of Justice Souter’s major cases:


(Souter, Kennedy, O’Connor): “Though abortion is conduct, it does not follow that the state is entitled to proscribe it in all instances.

“The woman’s right to terminate her pregnancy before viability is the most central principle of Roe v. Wade. It is a rule of law and a component of liberty we cannot renounce.”

“The reservations any of us may have in reaffirming the central holding of Roe are outweighed by the explication of individual liberty.”

Souter (speaking from the bench after the ruling was announced):

“To overrule (Roe) would subvert the court’s legitimacy beyond any reasonable question. If the court were undermined, the country would also be so … Roe has not proven unworkable in practice.”

The case was Planned Parenthood vs. Casey.


In a 5-4 decision in 2005, Justice Souter wrote for the majority that Ten Commandments displays in public courthouses in two Kentucky counties violated the First Amendment.

“The reasonable observer could only think that the counties meant to emphasize and celebrate the Commandments’ religious message.”

“The point is simply that the original text viewed in its entirety is an unmistakably religious statement dealing with religious obligations and with morality subject to religious sanction. When the government initiates an effort to place this statement alone in public view, a religious object is unmistakable.”

The case was McCreary County, Ky. v. American Civil Liberties Union of Kentucky.


In a 2006 case, Justice Souter wrote a dissenting opinion when the court, by 5-4, upheld the constitutionality of a Kansas death penalty law that had been invalidated by the Kansas Supreme Court.

The arguments focused on a tiebreaker system that required the death penalty if a jury found the favorable and unfavorable factors were equal. The issue was whether the law violated the Eighth Amendment’s ban on cruel and unusual punishment.

“A law that requires execution when the case for aggravation has failed to convince the sentencing jury is morally absurd, and the court’s holding that the Constitution tolerates this moral irrationality defies decades of precedent aimed at eliminating freakish capital sentencing in the United States.”

“In the face of evidence of the hazards of capital prosecution, maintaining a sentencing system mandating death when the sentencer finds the evidence pro and con to be in equipoise is obtuse by any moral or social measure. And unless application of the Eighth Amendment no longer calls for reasoned moral judgment in substance as well as form, the Kansas law is unconstitutional.”



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