Not a Zero-Sum Game: Replacing Justice Souter Risks a More Activist Court

Andrew M. Grossman / May 01, 2009

Though certainly no originalist, Justice David Souter is not a complete judicial activist, either. On a number of cases and issues, he has rejected the activist “empathy” standard promoted by President Obama to instead cast votes and write opinions that are in accord with the demands of the Constitution and the rule of law. And in a number of cases, particularly in the areas of crime and punishment and lawsuit abuse, he has broken ranks with the Court’s more liberal wing to do so. Here is a sampling of some of Justice Souter’s most significant stands in favor of the rule of law:

Punitive Damages: In Exxon v. Baker (2008), Souter authored a majority opinion, which was joined by Justices Roberts, Scalia, Thomas, and Kennedy, explaining that maritime common law imposes limits on excessive punitive damages and thus rejecting a lower court ruling that would have required Exxon to pay billions in punitive damages for the Valdez oil spill on top of the money it had already paid out in damages to compensate for actual injuries, as well as the $2.1 billion it spent on cleanup efforts. This decision was widely viewed as a major loss for trial lawyers, who count on excessive punitive damages to justify bringing otherwise low-damage, often frivolous lawsuits. (more…)