The weekend edition of the Wall Street Journal has a good house editorial on the Souter vacancy. Among other things, the editorial correctly observes: “While he advertised himself as a believer in stare decisis, or Supreme Court precedent, Justice Souter nearly always found a way to join 5-4 majorities that overturned precedents he disliked.” (A striking example: In voting in Lawrence v. Texas to overturn the Court’s 17-year-old precedent in Bowers v. Hardwick, Souter blithely abandoned the stare decisis principles that he helped cook up in Planned Parenthood v. Casey as a pretense for not overturning the then 19-year-old precedent of Roe v. Wade.) The editorial also properly highlights one of President Obama’s several statements making clear his commitment to nominate a liberal judicial activist who will indulge his or her own policy preferences:
“We need somebody who’s got the heart to recognize — the empathy to recognize what it’s like to be a young teenaged mom, the empathy to understand what it’s like to be poor or African-American or gay or disabled or old,” Mr. Obama said in 2007. “And that’s the criteria by which I’m going to be selecting my judges.” It’s hard to imagine a more expansive view of a judge’s role than that one.
(The editorial does err in asserting that the 1992 ruling in Casey had a “6-3 majority … upholding Roe v. Wade”; the actual margin was 5-4.)
By contrast, one news article in the same edition of the paper contends that Souter’s joint opinion in Casey “[d]isplayed characteristic respect for precedent” (and was “nuanced”!—but see This Week for June 29, 1992). It also contends that conservatives had hoped that Souter “would side with them on the hot-button social issues.” That phrasing obscures the critical distinction between recognizing that the Constitution leaves most “hot-button social issues” to the democratic processes (which conservatives, and all Americans, were entitled to expect that Souter, and all other justices, would do) and entrenching the conservative policy on these issues as constitutionally compelled (something that hardly any conservatives expected or sought). (For a discussion of how this elementary distinction applies to the issue of abortion, see this essay of mine.)
Yet another WSJ article contends that it’s Obama’s stated “preference for someone attuned to the ‘daily realities of people’s lives’”—rather than his much more explicit threats—that “conservatives have seized upon as a prescription for what they consider to be unwarranted judicial activism.”
The news articles are accompanied by a photo of the Court’s justices that uses the crude but convenient shorthands of “liberal” and “conservative” to identify eight of them but that identifies Justice Kennedy as an “independent conservative.” If Kennedy is any sort of “conservative” (see point 4 here), the label has become meaningless. And what he is most “independent” of is adherence to traditional principles of legal interpretation.
(I don’t mean to single out the Wall Street Journal’s news coverage for criticism; errors like its qualify as conventional wisdom among reporters.)