Justice Souter, appointed by President George H.W. Bush in 1990, was initially supported by hopeful conservatives—who, along with unborn children, property rights enthusiasts, free speech advocates, federalists, and religious freedom benefactors, were soon greatly disappointed with his performance on the Court.
Justice Souter, whose views were relatively unclear up to the completion his first several terms on the Court, wrote his senior college thesis on the legal positivism of Justice Oliver Wendell Holmes, no defender of the constitutional text or originalism himself.
Among Souter’s most notable—notorious?—votes were against the principle of strong property rights in Kelo v. City of New London; against America’s long-standing religious traditions in Lee v. Weisman and McCreary; in favor of virtually unlimited Commerce power of Congress in U.S. v. Lopez; in favor of racial discrimination in Adarand Constructors v. Pena; against equal access for faith groups in Rosenberger (a case in which he disparagingly cited an article written by a mentor of mine); against school choice in Zelmon v. Simmons Harris; against free speech in the political speech context in McConnell v. FEC; and in defense of the barbaric practice of partial birth abortion in Stenberg v. Carhart.
Of course, the most notable early example of what to expect from Souter sprang forth from Souter’s troika opinion in Casey—a decision in which the Court was poised to bring light to a dark period in American history by overturning Roe v. Wade, but instead moved the constitutional “grounding” of Roe from emanations and penumbras to the Due Process Clause of the 14th Amendment.
So, Justice Souter will not be missed by those of us who favor life, free speech, and individual liberty.