The quiet disappointments of Justice David Souter

Last week, Justice David Souter--hiker, recluse, and former Supreme Court justice--passed away. A bookish New Englander with a preference for solitude and landlines over limelight, Souter wasn't known for writing barnburners. Nor did he author any landmark majority opinion. Instead, he became famous for disappointing the president who nominated him.

When President George H.W. Bush nominated Souter in 1990, he had no real paper trail--a fact that made confirmation smooth but masked any clear sense of his judicial philosophy. The National Organization for Women warned he would roll back women's rights. Nine Democratic senators, including John Kerry, voted against him, assuming he'd be a reliable conservative vote.

They were all wrong. Justice Souter turned out to be a reliable vote for the liberal bloc. Still, he was no firebrand. Instead, he became a jurist whose deference and modesty often left freedom defenseless.

Libertarians, too, would find little to cheer in his jurisprudence.

To be sure, he had moments of principle. He was strong on the Fourth Amendment, especially in school search cases. In Safford Unified School District v. Redding, he wrote that strip-searching a 13-year-old girl for ibuprofen violated her rights. But even there, the decision was modest. He also ruled that the school officials were immune from suit because the illegality of the strip search was not "clearly established" at the time. Justice John Paul Stevens wrote separately to observe that "[i]t does not require a constitutional scholar to conclude that a nude search of a 13-year-old child is an invasion of constitutional rights of some magnitude." He and Justice Ruth Bader Ginsburg, in contrast to Justice Souter, would've held the school officials personally accountable.

Justice Souter also sided with Guantanamo detainees in Boumediene v. Bush, defending habeas corpus even in times of national fear. And perhaps his most libertarian moment came in Lawrence v. Texas, where he joined the majority and struck down a Texas law criminalizing same-sex intimacy. The Court in that case didn't ask whether the right at issue was "deeply rooted in the nation's history and tradition"--the usual formula--and instead assumed personal liberty existed and placed the burden on the government to justify its intrusion. That flipped the script--which typically gives the government the benefit of the doubt--in a way libertarians often hope courts will do.

But beyond a few such glimmers, Souter's legacy is largely one of deference to government power, legislative judgment, and collectivist assumptions.

Take property rights. Souter voted with the majority in Kelo v. City of New London, a decision that allowed the government to seize a woman's little pink home and hand it to a private developer based on the speculative promise of "economic development." He also sided with the government in Tahoe-Sierra and San Remo Hotel, two cases that made it harder for people to challenge regulations that restrict the use of their property or significantly diminish its value.

His votes on federal power were just as troubling. In United States v. Lopez and United States v. Morrison--two rare cases that imposed limits on Congress's ability to regulate interstate commerce--Souter dissented. He believed the Court should defer to Congress on what affects interstate commerce, even when the activity was clearly non-economic. In Gonzales v. Raich, he again sided with the federal government, allowing it to criminalize a woman's homegrown medical marijuana--legal under state law--because it might somehow affect the broader interstate marijuana market.

On economic liberty, he was no friend. In Washington v. Glucksberg, he voted against recognizing a constitutional right for terminally ill individuals to choose assisted death. In his concurrence, he railed against the Lochner era--an era many libertarians admire for its judicial protection of the right to earn a living--and even compared it to the abhorrent Dred Scott decision, which reveals more about Souter's hostility to economic liberty than about constitutional history.

And on the issue of race, he reliably favored group-based preferences over individual rights. He supported affirmative action in Grutter and Gratz, and would have upheld racial preferences in K-12 schools in Parents Involved v. Seattle School District. He even dissented in Adarand v. Peña, a case that imposed strict scrutiny on federal race-based contracting programs, saying courts should be more lax. Time and again, he voted to uphold programs that sorted people by race, putting collectivist assumptions about skin color over individual dignity.

What, then, is Justice Souter's legacy?

In some ways, it's a cautionary tale about mistaking passivity for judicial humility. Souter was a decent man--well-liked, sincere, and respected by colleagues. But he was a justice who too often favored minimalism over principle, process over substance, and government judgment over freedom.

He may not have been a lion of the law, but his tenure reminds us that even quiet justices can cast long shadows.