Where Would Justice Souterâ€™s Replacement Make a Difference? Part II
In a prior post, we began identifying cases in which it is possible that replacing Justice Souter with Judge Sotomayor might change the outcome. In particular, we identified cases in which Justice Souter was in the majority in a 5-4 decision, beginning with cases that did not break down along traditional liberal-conservative lines. And we identified two cases decided thus far this term "“ Arizona v. Gant and Vaden v. Discover Bank "“ that met those criteria.
Looking back beyond the present term, it is clear that such decisions are relatively infrequent. Since the start of the October 2005 term "“ during which Justice Alito joined the Court to create its present membership "“ we have been able to identify only seven decisions matching the 5-4 "quirky lineup" criteria with Justice Souter in the majority. In the context of criminal cases, perhaps the most significant issue that may be affected by Justice Souter's retirement is the Court's willingness to rely on the rule of lenity. In the civil context, the constitutional limitations on punitive damages emerge as the most significant issue in this collection of cases.
Criminal Cases and the Rule of Lenity
Four of the seven cases since 2005 have been criminal. One was Gant. Another was Day v. McDonnough, 547 U.S. 198 (2006), in which Justice Souter sided with Chief Justice Roberts, and Justices Ginsburg, Kennedy, and Alito, to hold that a federal court had the authority to dismiss sua sponte a habeas petition as untimely, despite the State's erroneous concession that the petition was filed on time.
In another case going against a criminal defendant, Justice Souter likewise voted with the 5-4 majority in James v. United States, 550 U.S. 192 (2007), to hold that attempted burglary (as defined by Florida law) was a "violent felony" within the meaning of the federal Armed Career Criminal Act. He was joined by Chief Justice Roberts and Justices Alito, Kennedy, and Breyer.
Perhaps the most significant criminal case in our collection was United States v. Santos, 128 S.Ct. 2020 (2008), in which the Court divided 5-4 over the meaning of the word "proceeds" in the federal money laundering statute. Justice Souter agreed with Justices Scalia, Thomas, and Ginsburg, that it means "profits," with Justice Stevens providing the fifth vote (concluding that it at least meant "profits" in the context of the case before the Court).
The case is significant not because of the specific issue, but rather because the plurality opinion Justice Souter joined rested its conclusion on the rule of lenity, a doctrine that is a source of continuing conflict on the Court that cuts across traditional conservative-liberal lines. Judge Sotomayor could have a significant influence on the outcome of that doctrinal debate in future cases. A quick search of her decisions, however, is not particularly revealing. It appears that the rule of lenity came up in only six of her opinions in the Second Circuit, and she declined to rely on it in every instance. However, she did rely on the rule in a couple of cases as a district court judge.
Civil Cases and Punitive Damages
In addition to Vaden, Justice Souter sided with the majority in the civil case, Kentucky Retirement Systems v. EEOC, 128 S.Ct. 2361 (2008), which held that an employer disability benefit plan that gave higher benefits to workers injured before retirement age did not violate the Age Discrimination in Employment Act. Justice Breyer wrote the opinion, joined by the Chief Justice and Justices Stevens, Thomas, and Souter.
The most significant civil decision in our collection, however, is Philip Morris v. Williams, 549 U.S. 346 (2007). In that case, Justice Souter cast the deciding vote to vacate a punitive damages award against Phillip Morris, holding that it was unconstitutional for a jury to award punitive damages in part to punish a defendant for harming nonparties. Justices Stevens, Scalia, Ginsburg, and Thomas dissented.
Philip Morris illustrates the continuing long-standing divisions on the Court over constitutional limitations on punitive damages awards, an area in which Justice Souter's replacement by Judge Sotomayor may be especially consequential. The same term Philip Morris was decided, Justice Souter cast the deciding vote, and wrote the opinion, in Exxon Shipping v. Baker, 128 S.Ct. 2605 (2008), which substantially reduced the punitive damages awarded by a jury in the aftermath of the Exxon Valdez disaster, and held as a matter of federal common law (not constitutional law) that punitive damages in maritime cases ordinarily must be limited to an amount no greater than the award of compensatory damages.
The Exxon case does not strictly fall within our criteria here because Justice Alito was recused, resulting in a 5-3 decision in favor of Exxon. Had he participated and voted in Exxon's favor, Justice Souter's vote would not have been determinative. But the case is nonetheless illustrative of the broader division on the Court regarding punitive damages. For example, Justice Souter cast the deciding vote in the seminal case elaborating a substantive due process limitation on the size of punitive damages awards, BMW v. Gore, 517 U.S. 559 (1996).
Again we have few clues to how Judge Sotomayor would view this area of law. The only case we could find in which she ruled on the constitutionality of a punitive damages award was one she issued as a district judge, Greenbaum v. Handelsbanken, 67 F.Supp.2d 228 (S.D.N.Y. 1999). There, she applied BMW v. Gore to uphold a $1.25 million punitive damages award in a sex discrimination and retaliation Title VII case that resulted in an award of back pay of $320,000 (resulting in a punitive-compensatory damages ration of less than 4:1).