Why Justice Souter Will Be Missed

When the Supreme Court ruled last week in a controversial 5-4 decision that prisoners have no constitutional right to obtain available DNA evidence that could prove their innocence, retiring Justice David Souter wrote an eloquent dissent.

This excerpt below (I’ve omitted the citations) explains how the majority’s “conservatism” in this case became just a form of backwardness:

There is no denying that the Court is correct when it notes that a claim of right to DNA testing, post-trial at that, is a novel one, but that only reflects the relative novelty of testing DNA, and in any event is not a sufficient reason alone to reject the right asserted. Tradition is of course one serious consideration in judging whether a challenged rule or practice, or the failure to provide a new one, should be seen as violating the guarantee of substantive due process as being arbitrary, or as falling wholly outside the realm of reasonable governmental action. We recognize the value and lessons of continuity with the past, but as Justice Harlan pointed out, society finds reasons to modify some of its traditional practices, and the accumulation of new empirical knowledge can turn yesterday’s reasonable range of the government’s options into a due process anomaly over time.

It’s been said that Souter’s influence on the court has been limited because he doesn’t espouse grand theories or writing particularly memorable, quoteworthy passages. But that’s also been his strength, as it’s allowed him to convey clearly and simply what he believes the constitution requires, unclouded by the desire to impress or advance an ideological agenda.

Although these things are always hard to predict, Supreme Court nominee Sonia Sotomayor would appear to be a similar sort of justice — not particularly ideological, not flashy, but careful and open to the notion that interpretations of the constitution must progress along with advances in science and ethical mores.

To be sure, she’s been criticized for having denied a prisoner, Mark Descovic, the right to test DNA evidence after he was wrongly convicted of rape and murder, simply because his lawyer’s request came four days late. Not the most “empathetic” ruling, but then, the jury already knew Descovic’s DNA didn’t match that of the semen found in the victim; he was convicted based on his apparently coerced confession. He was eventually freed in 2006.

That’s the sort of ruling that could disappoint liberals who might think that fairness ought to have taken precedence over finality. As I’ve noted, Sotomayor’s prosecutorial background sometimes makes her a stickler for following the letter of the law rather than its spirit.

Still, one would hope that she, or any new justice, would be prepared to balance the values of continuity with progress in much the same way that  Souter did — or tried to — last week. To tip the balance on the court, however, that new justice will also have to be extraordinarily persuasive.