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"Empathy" -- and filling Justice Souter's shoes

June 5, 2009

James R. Copland

[Originally published in the Washington, D.C. Examiner, 5-19-09.]

With Supreme Court Justice David Souter retiring, the conventional wisdom is that President Obama's imminent selection of a replacement will do little to upset the balance on the Supreme Court. Underlying this view is the fact that Justice Souter has been a stalwart on the "left" wing of the Court in hot-button cases such as those involving race discrimination and abortion rights.

Typically, however, the conventional wisdom is wrong. It is somewhat silly to look at the Supreme Court's composition today--a snapshot in time--in assessing the impact of a lifetime judicial appointment.

But even in the short run, once one looks past the headline cases, Justice Souter has been a jurist with nuanced views not easily pigeonholed into a simplistic left-right dichotomy. For instance, Justice Souter has thoughtfully worked to constrain litigious excess in American society.

In a 2007 case, the Supreme Court supported dismissing a sweeping class-action lawsuit that had alleged antitrust violations by telecommunications companies. The lawyers pursuing the case had failed to offer any real facts supporting their claim, and Justice Souter's majority opinion clearly spelled out just how costly litigation can be when such unfounded lawsuits are allowed to proceed.

Regardless of whether a case actually gets to trial, Justice Souter noted, liberal discovery rules allow plaintiffs' lawyers to demand millions of documents and emails from corporate defendants.

Last year, Justice Souter authored another major opinion for the Court in litigation stemming from the catastrophic 1989 Exxon Valdez oil spill. Writing for a narrow five-justice majority, Justice Souter decided to limit the punitive damages a trial court jury had imposed against the oil company, above and beyond already-paid billions of dollars in actual costs. Even though extreme punitive awards are rare, Souter's opinion explained, litigation costs are driven by "outlier cases," in which such awards "dwarf" the damages levied to compensate actual injury.

The Exxon case concerned federal maritime law, a narrow field of jurisprudence, but Justice Souter's skepticism of outlier punitive awards has also placed him in the Court's slim majority in constitutional cases that place limits on state courts' ability to impose extreme punitive damages.

Nevertheless, it is emphatically not the case that Justice Souter has been predictably pro-defendant in cases involving civil litigation. He has typically supported a broad scope for state litigation when it comes into conflict with federal regulation. He has also displayed a rather expansive view of federal securities litigation and employment discrimination lawsuits.

While I and other observers might object to some of Justice Souter's views on these issues, his even-handedness contrasts sharply with a jurisprudence founded on "empathy," the President's stated first criterion for picking a Supreme Court justice.

In many cases, it is impossible notto empathize with the plaintiff whose case makes it all the way to the high court--such as those whose lives and property were devastated by the Valdez oil spill. It is hardly surprising that Alaska's then-little-known governor, Sarah Palin, objected vigorously to the Supreme Court's decision.

But unlike politicians, Supreme Court justices are called upon to weigh laws dispassionately. A judicial approach that tries to be neutral--tilted neither for nor against the "powerless" or the "powerful" in the case at hand--is far less likely to create legal rules with sweeping and costly unintended consequences.

In many cases, rather than being a predictable liberal, Justice Souter has contributed to a sort of "centrist coalition" that seeks to balance access to the courts with sensible limits on excessive litigation.

Should President Obama's nominee have an empathy that leads her instead to side reflexively with plaintiffs in most civil litigation against corporations, the Supreme Court's laudable efforts to stem the most egregious abuses of legal process could be turned back.

James R. Copland is the director of the Center for Legal Policy at the Manhattan Institute. He owns shares in telecommunications companies and in Exxon Mobil Corporation, parties in cases mentioned above.



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute

Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.