Why Conservative Values
Often Yield Liberal Court Rulings


By Steve Tuttle


East Carolina University political science professor Tinsley E. Yarbrough’s new biography of Supreme Court Justice David H. Souter helps answer the question vexing political pundits in Washington: Why do many supposedly conservative nominees for the U.S. Supreme Court become fairly liberal once they don the black robes?

As the author of nine books on American jurisprudence, Yarborough (right) has been asked that question on C-SPAN and other talks shows examining nominees Harriett Miers, John Roberts and Samuel A. Alito Jr. He responds by pointing to Justice Souter, the rock-ribbed New Englander appointed to the high court by the first President George Bush. In the years since then, Souter shocked ­conservatives by developing a moderately liberal voting record. In 15 years as a justice, Souter has voted 63 percent of the time with the liberal Justice John Paul Stevens and only 31 ­percent of the time with conservative Justice Antonin Scalia. He even dissented in part from the court’s controversial decision to end the Florida vote recount, which handed the election to the second President Bush.

In his new book, David Hackett Souter: Traditional Republican on the Rehnquist Court, Yarbrough argues that if conservatives had done their homework they would have known what would ­happen. In his 1990 confirmation hearings, Yarbrough points out, Souter repeatedly stressed his respect for precedent. Souter said he “preferred the approach of the late Mr. Justice Harlan above all ­others.”

Frequently a dissenter on the Warren court, John Marshall Harlan is remembered chiefly for his adherence to the Supreme Court’s past decisions—the concept of stare decisis. It was Souter’s respect for ­precedent, Yarbrough says, that motivated his vote in the
Planned Parenthood v. Casey case, the 1992 decision that declined to overrule Roe v. Wade.

Perhaps because of the current interest in Supreme Court nominees, Yarbrough’s book has been widely reviewed. A speech he gave on the subject in October at the Woodrow Wilson international Center for Scholars in Washington, D.C., has been rebroadcast several times on C-Span 2’s Book TV ­program. The review in Publishers Weekly notes, “At a time when the Supreme Court is once again being remade, this biography opens up the world of one of the court’s most ­intriguing members.”

Yarbrough treats Souter respectfully and blames the first Bush Administration for failing to ­comprehend the fundamental concept of judicial restraint. In casual conversations, Souter sounded ­conservative, so “they may have heard what they wanted to hear,” Yarbrough says.

In other words, Yarbrough says, it’s often less ­important to focus on how a Supreme Court nominee voted in the past than why he or she voted that way. His book’s account of Souter’s Senate confirmation hearings is ­particularly salient given the nomination of Alito, a ­conservative judge who ­professes profound respect for Supreme Court precedent.

Yarbrough was not able to interview Souter or his clerks for the book, which isn’t unusual because Supreme Court justices rarely grant personal interviews. But he is able to paint a clear ­picture of the man underneath the robes through extensive ­interviews with some of Souter’s close friends.

This is Yarbrough’s ninth book on major figures in American jurisprudence. His other works include The Rehnquist Court and the Constitution; The Judicial Enigma: The First Justice Harlan; John Marshall Harlan: Great Dissenter of the Warren Court; Mr. Justice Black and His Critics; A Passion for Justice; and Judge Frank Johnson and Human Rights in Alabama.

For additional information, contact Tinsley Yarborough at 252-328-4136 (office), or yarbrought@mail.ecu.edu.



DAVID HACKETT SOUTER
Traditional Republican on the Rehnquist Court
By Tinsley E. Yarbrough
Oxford University Press, 311 pp., $29.95

Excerpt from the book:

At issue in Boy Scouts of America vs. Dale (2000) was the BSA’s decision to fire an openly gay assistant scoutmaster despite a New Jersey public accommodations provision prohibiting discrimination on the basis of sexual preference. Citing, among other things, portions of the Scout Oath and Law obliging scouts to be “morally straight” and “clean,” (Chief Justice William Rehnquist) concluded for a 5-4 majority that the BSA’s philosophy included opposition to homosexuality and that requiring the Scouts to include gays in their membership would significantly impair the group’s expression of that viewpoint.

Justice Souter joined a scathing (Associate Justice John Paul) Stevens dissent ridiculing the evidence on which the Court based its conclusion. But in a separate dissent, Souter felt obliged to clarify one observation Stevens had made. His colleague had noted what Souter termed the “laudable decline in stereotypical thinking on homosexuality.” Characteristically, Souter thought it important to point out that “the right of expressive association did not, of course, turn on the popularity of the views advanced by a group that claims protection. Whether the group appears to this Court to be in the vanguard or rearguard of social thinking is irrelevant to the group’s rights.

“I conclude that BSA has not made out an expressive association claim … because of its failure to make sexual orientation the subject of any unequivocal advocacy, using the channels it customarily employs to state its message….

“No group can claim a right of expressive association without identifying a clear position to be advocated over time in an unequivocal way. To require less, … however expressed and however consistently claimed, would convert the right of expressive association into an easy trump of any antidiscrimination law.” The justice also dissented in 2003 when the Court upheld provisions of the Children’s Internet Protection Act, requiring public libraries that receive federal funds to use Internet filters blocking obscene or pornographic images and preventing minors from accessing harmful material. Souter agreed with Justice Steven’s contention in dissent that the blocking requirements imposed an unconstitutional condition on the receipt of federal funds. But he also agreed that the rule required actions that would violate free speech if taken by libraries acting alone. … Souter found “no good reason … to treat blocking of adult enquiry as anything different from the censorship it presumptively is.”

Return to magazine index