In a May 1 letter to President Obama, U.S. Supreme Court Justice David Souter said he would be retiring from the nation’s high court in June. Souter’s announcement has set off a flurry of speculation about a successor, and it has educators wondering what his departure might mean for schools.
In June 2000, the moderate Souter wrote the dissent on Mitchell v. Helms, a case deciding whether the use of federal funds for private schools violates the First Amendment’s establishment clause.
Chapter 2 of the Education Consolidation and Improvement Act of 1981 provides for the allocation of funds for educational materials–such as library media and computer software–to public and private elementary and secondary schools to implement "secular, neutral, and nonideological" programs. In Jefferson Parish, La., about 30 percent of Chapter 2 funds are allocated for private schools, most of which are religiously affiliated. Mary Helms and other public school parents filed suit on the grounds that Chapter 2, as applied in Jefferson Parish, violated the separation of church and state.
The court ruled that such a use of federal funds did not violate the law. Souter, along with Justices Ruth Bader Ginsburg and John Paul Stevens, dissented. In the dissent, written by Souter, the justices stated that taxpayer money should not pay for parochial school materials.
"The First Amendment’s Establishment Clause bars the use of public funds for religious aid. … To the plurality [majority], there is nothing wrong with aiding a school’s religious mission; the only question is whether religious teaching obtains its tax support under a formally evenhanded criterion of distribution. The plurality equates a refusal to aid religious schools with hostility to religion. I respectfully dissent," he wrote.
At the end of a presidential press conference about swine flu, reporters tried to shout questions about Souter, but Obama declined to answer.
"No Supreme Court questions," he said to reporters.
Souter’s departure is unlikely to change the court’s divided judicial philosophies. Obama’s first pick for the high court is likely to be a moderate nominee, much like Souter.
Many court watchers think the president will choose a woman to fill the vacancy, so there would be another woman on the bench to join Ginsburg, currently the court’s only female justice.
At 69, Souter is much younger than either Ginsburg or Justice John Paul Stevens, 89, the other two moderate justices whose names have been mentioned as possible retirees. Yet those justices have given no indication they intend to retire soon, and Ginsburg said she plans to serve into her 80s, despite her recent surgery for pancreatic cancer.
Souter, a regular jogger, is thought to be in excellent health.
In Philadelphia, Sen. Arlen Specter said he would like to see more ethnic and gender diversity on the high court.
"I think that, given the proportion of women in our society, … one out of nine is underrepresented," said Specter, a recent convert to the Democratic Party. "The court could use some diversity along a number of lines."
Interest groups immediately began gearing up for Souter’s replacement.
"Obama’s own record and rhetoric make clear that he will seek left-wing judicial activists who will indulge their passions, not justices who will make their rulings with dispassion," said Ed Whelan, president of the conservative Ethics and Public Policy Center.
Nan Aron, president of the liberal Alliance for Justice, said, "We’re looking for President Obama to choose an eminently qualified candidate who is committed to the core constitutional values, who is committed to justice for all and not just a few."
Some of the names that have been circulated include recently confirmed Solicitor General Elena Kagan; U.S. Appeals Court Judges Sonya Sotomayor, Kim McLane Wardlaw, Sandra Lea Lynch, and Diane Pamela Wood; and Leah Ward Sears, chief justice of the Georgia Supreme Court. Men who have been mentioned as potential nominees include Massachusetts Gov. Deval Patrick, Harvard Law professor Cass Sunstein, and U.S. District Judge Ruben Castillo of Chicago.
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