David Souter

High Court Member’s Church-State Batting Average Was Out Of This World, Says Americans United

When President George H.W. Bush tapped an unknown New Hampshire federal appeals court judge for a seat on the Supreme Court in July of 1990, some conservatives were nervous.

David H. Souter had been sitting on the 1st U.S. Circuit Court of Appeals for just a few months and had a very slim record. But there was no reason to worry, insisted White House Chief of Staff John Sununu.

“This is a home run,” Sununu, a fellow New Hampshire resident, assured the wary right wing. “And the ball is still ascending. In fact, it’s just about to leave Earth orbit.”

The ball may have left Earth orbit, but it definitely ended up in a place that did not please the far right.

Souter was duly confirmed and almost immediately aligned himself with the court’s more liberal faction. Studious and thoughtful, the justice became known, among other things, for his strong intellectual defense of church-state separation.

After serving nearly 19 years on the high court, Souter announced last month that he plans to retire and return to his family farm in New Hampshire. The intensely private, 69-year-old justice was reportedly unhappy living in Washington and eager to get back to his rural roots.

The announcement was something of a surprise. Although rumors had circulated about a possible Souter departure, most speculation had centered on Justice John Paul Stevens, now 89 years old, and Ruth Bader Ginsburg, who recently survived a bout with pancreatic cancer.

The move gives President Barack Obama his first opportunity to name a Supreme Court justice. With so much at stake, observers expect an intense confirmation process this summer. If all goes as planned, the new justice will be seated by the time the court reconvenes on Oct. 5 after its summer recess.

The media and the blogosphere have been abuzz with speculation about possible Souter replacements. For his part, Obama has so far remained tight-lipped. Reacting to Souter’s announcement, Obama praised the jurist’s “integrity, equanimity and compassion” and added some thoughts about the type of justice he will seek.

“I will seek someone who understands that justice isn’t about some abstract legal theory or footnotes in a case book,” Obama said. “It is also about how our laws affect the daily realities of peoples’ lives – whether they can make a living, care for their families, whether they feel safe in their homes and welcome in their own nation. I view that quality of empathy, of understanding and identifying with people’s hopes and struggles as an essential ingredient for arriving at just decisions and outcomes.”

Americans United is urging the president to make sure that the new justice respects the separation of church and state.

“Justice Souter had a keen appreciation for the church-state wall and understood how that protective barrier assures religious liberty,” said Barry W. Lynn, Americans United executive director. “We expect his successor to share those views.”

Souter, who kept out of the media limelight, never gave public interviews explaining his views on church-state separation. Yet his appreciation for that principle was evident in his legal writings. Whether in the majority or the dissent, Souter was a steadfast champion of Thomas Jefferson’s church-state wall.

The first test of Souter’s church-state views came in 1992, when the high court heard arguments in a case from Rhode Island challenging school-sponsored graduation prayers. The court at that time had a conservative majority, and many church-state separation advocates braced themselves for a loss.

But the decision in Lee v. Weisman was a surprise. By a slender 5-4 vote, the court struck down the official prayers and affirmed the school prayer rulings of the early 1960s.

The lead opinion was drafted by Justice Anthony M. Kennedy, but Souter wrote separately to explain his views. He firmly rejected the idea that government could endorse religion in a non-discriminatory way and cautioned against state involvement in so-called “non-sectarian” forms of religion.

Permitting government involvement in prayer and worship, Souter asserted, “invite[s] the court to engage in comparative theology. I can hardly imagine a subject less amenable to the competence of the federal judiciary, or more deliberately to be avoided where possible.”

Two years later, Souter sparred with Justice Antonin Scalia in Board of Education of Kiryas Joel v. Grumet, a decision by the high court striking down the creation of a special “public” school for a community of Hasidic Jews in New York. Scalia would have allowed the school to continue and wrote a typical acid-laced dissent, ridiculing the idea that giving one religious group its own public school “established” religion.

Souter responded forcefully.

“Justice Cardozo once cast the dissenter as ‘the gladiator making a last stand against the lions,’” Souter dryly observed. “Justice Scalia’s dissent is certainly the work of a gladiator, but he thrusts at lions of his own imagining.”

In 1995, Souter went head to head against Justice Clarence Thomas, challenging Thomas’ view of church-state history in Rosenberger v. Rector and Visitors of the University of Virginia.

Thomas had insisted that the government can aid religion financially as long as it does so on an even-handed basis. Souter sharply disagreed.

“Justice Thomas wishes to wage a battle that was lost long ago, for this Court has rejected unequivocally the contention that the [Constitution] forbids only governmental preference of one religion over another,” Souter wrote.

As years passed, Souter proved to be a strong opponent of tax aid to religion. He dissented in a number of decisions permitting government assistance to religious schools. In 2000, he criticized a majority opinion by Thomas in Mitchell v. Helms, a Louisiana case that permitted publicly funded remedial instruction in parochial schools.

Souter warned that public funding of religious institutions threatens “the right of conscience against compelled support for religion.”

Two years later, Souter dissented in Zelman v. Simmons-Harris, which upheld Ohio’s voucher subsidies for religious and other private schools.

Souter chided the court majority for its ruling, asserting that there is “no excuse” for ignoring the separation of church and state, adding, “Constitutional limitations are placed on government to preserve constitutional values in hard cases, like these.”

At the same time, Souter was a strong advocate of individual religious freedom. In a 1993 case called Church of the Lukumi Babalu Aye v. Hialeah, Souter wrote at length about his vision of religious liberty and criticized the high court for narrowing those protections in an earlier case.

On social issues, Souter infuriated the Religious Right. He voted to uphold legal abortion and gay rights. Religious Right leaders, furious over his elevation to the Supreme Court by a Republican president, soon coined a new rallying cry for their shock troops: “No more Souters!”

Pressure from these organizations proved effective. About a year after Souter was nominated, Justice Thurgood Marshall retired. Bush made sure his next appointee – Clarence Thomas – was not another Souter.

During his confirmation hearings, Thomas endorsed the wall of separation between religion and government. But once on the court, he joined Scalia in attacking that concept.

Thomas has gone so far as to assert that all the First Amendment does is bar creation of a national church. Under his vision, state and local governments would be free to support and promote religion in many ways.

The Americans United Legislative and Legal Departments are monitoring the current vacancy closely. AU staff members are researching the records of potential nominees and sharing our perspective with the White House.

AU will also work with Senate offices, urging members of the Judiciary Committee to closely question any nominee to ascertain his or her views on church-state matters.

Conventional wisdom in Washingn is that Obama’s nominee will be confirmed easily, since Democrats now hold 59 seats in the Senate (and may soon hold 60 if Al Franken of Minnesota is seated).

But AU points out that it’s often not that simple. Past nominees have been felled by scandals and embarrassing revelations about their personal lives.

Republicans could also delay the process by launching a filibuster – assuming the Democrats cannot muster 60 votes to shut it off.

AU’s Web site will continue monitoring developments about the Supreme Court.