Where Would Justice Souter’s Replacement Make A Difference? Part I
on May 27, 2009 at 4:30 pm
 It has widely been assumed that Justice Souter’s retirement, and replacement by an Obama nominee, would have little effect on the outcome of cases in the Supreme Court, on the theory that Souter’s replacement will likely share his views in large part, at least in cases where the Court is closely divided. This post will begin an examination of that presumption, identifying recent cases in which Justice Souter cast a deciding vote in a context where it is at least possible that his likely successor, Judge Sotomayor, might vote differently.
The universe of possible cases in which Souter’s replacement might make a difference to the outcome is necessarily limited to cases decided by 5-4 margins with Justice Souter in the majority.  This rules out the fair number of cases with traditional conservative-liberal 5-4 splits, in which Justice Souter was in the dissent – even if his replacement voted more conservatively than he did, that would just widen the margin, not change the result.
That leaves two other kinds of cases. The first are cases in which the liberals (including Justice Souter) attract a fifth vote, and it is possible that Judge Sotomayor would vote with the conservatives when Justice Souter voted with the liberals. One would predicate that – at least on hot-button issues, like abortion and affirmative action – the President would not have nominated Judge Sotomayor unless he were fairly confident that she would vote consistently with Justice Souter’s liberal-leaning record. But there may be less high-profile cases in which that would not hold true, perhaps in the criminal context where Judge Sotomayor has often sided with prosecutors and Justice Souter sometimes has not (although he has been far from a sure vote for either defendants or the Government in criminal cases). We will look for such cases in a subsequent post.
The second category of cases in which the change in Court personnel might make a difference, and the one we will review first, is in the relatively rare, but nonetheless recurrent, cases in which the Court splits 5-4 along non-traditional lines, with Justice Souter in the majority.
One example of such a case was United States v. Booker, 543 U.S. 220 (2005), in which a majority of the Court, including Justice Souter, declared the federal sentencing guidelines unconstitutional in part. The majority included liberal Justices Souter, Stevens, and Ginsburg, joined by conservative Justices Scalia and Thomas.  Dissenting were Justices Rehnquist, O’Connor, Kennedy, and Breyer. If Judge Sotomayor had been on the bench at the time, and voted differently than Justice Souter, the case would have come out the opposite way.
While it is unlikely that the Court will revisit Booker anytime soon, the case continues to give rise to subsidiary questions. For example, this term in Oregon v. Ice, No. 07-907, the Court divided 5-4 over whether the principles animating Booker require that juries, rather than judges, find the facts necessary to the imposition of consecutive, rather than concurrent sentences of multiple offenses.  If she is confirmed, Judge Sotomayor thus may play a critical role in the future development of this line of cases.
Thus far, there have been two “quirky lineup” cases decided this term in which Justice Souter was in the majority.
The first was Arizona v. Gant, in which a bare majority of the Court, including Justice Souter, voted to overturn (or at least narrowly cabin) a prior precedent that allowed the police to search a vehicle incident to the arrest of its driver without any showing of particular suspicion or need. The majority included Justices Stevens, Scalia, Souter, Thomas, and Ginsburg. Justice Breyer agreed that the old case was wrongly decided, but declined to vote to depart from it, on stare decisis grounds.   Had Judge Sotomayor been on the Court, and agreed with Justice Breyer’s position or the position of the dissenters, the case would have come out differently.
The second such case was Vaden v. Discover Bank.  This case involved a question about federal courts’ jurisdiction to here claims asking to compel arbitration under the Federal Arbitration Act. As a matter of statutory interpretation, Justices Ginsburg, Scalia, Kennedy, Souter, and Thomas, held that the federal court has jurisdiction to compel arbitration only if it would have jurisdiction to resolve the underlying dispute between the parties, looking at the type of claims asserted in the original complaint.
In future posts, we will look beyond the current term for other cases or issues that may be significantly affected by the replacement of Justice Souter.
