Despite all the talk of Justice Souter’s importance to the Court, the proposition that Justice Souter has had a minimal impact on the Court’s most controversial issues is generally true. Since the beginning of OT06, Justice Souter has issued just 1 of 39 5-4 opinions and this lone 5-4 majority opinion was handed down less than a month ago in Corley v. US, involving the admissibility of confessions under peculiar circumstances. With that statistic in mind, the argument goes: Justice Souter wasn’t particularly influential in building consensus, so as long as his replacement doesn’t scare people off (Justice Thomas to Justice O’Connor), the liberals can only break even or better.
Even though it is normally the conservatives who worry about accidentally picking a Justice who isn’t what they bargained for (SOUTER), it isn’t impossible for Justice Souter’s replacement to be slightly less liberal than his or her predecessor. When Justice Breyer was nominated to the Court in 1994, he seemed like a standard down-the-line liberal Justice but he has since developed a reputation for betraying the liberal cause. Justice Souter has been a more consistent liberal voice, much more in the mold of Justice Ginsburg or Justice Stevens (ie.Arizona v. Gant).
If President Obama decides to look outside the well-established federal Judiciary for his first Supreme Court nominee, he could end up getting a Justice who breaks the mold of what we now consider a liberal justice. Justice O’Connor was generally conservative but heavily favored States-rights because of her experience as a state legislator. If President Obama were to pick a politician like Deval Patrick, his nominee would face a similarly complex alignment of politics, experience, and jurisprudence.