Souter’s Departure and an Internationalist Court

The conventional wisdom is probably correct here, that David Souter’s retirement won’t make much of a difference to the Court’s overall balance.  But no two Justices are alike.  There will be inevitable differences in style and approach, and on the less prominent questions, the ones mostly off the radar screen, that can lead to different votes.  I don’t know much about Souter’s business law jurisprudence, for example, and I doubt that anyone will focus on how it differs from the nominee to replace him. (More here on how his departure may shake things up from Jonathan Adler.)

Might IL-related cases pose another such area?  One of Souter’s many, many charms is that he is most definitely not a product of globalization.  You won’t find him trailing along the other justices for European summer junkets; I doubt very much that he would self-identify as a member of the global community of courts.  If only as a generational matter, his successor will almost surely have more of an international orientation.  At least one pick on everyone’s short list, Diane Wood of the 7th Circuit, would bring serious IL depth to the Court.

Not that Souter has resisted the use of international law.  He joined the Atkins-Lawrence-Roper trilogy and the detainee decisions.  But he wasn’t out front in using international and foreign law in the way of Breyer, Ginsburg, and Kennedy.  His replacement might be, now especially that Harold Koh’s nomination as State Department Legal Adviser has shown sovereigntism up as a spent political force.  (Koh himself appears on some nominee slates.  One wonders if he might have gotten a tougher reception if his hearing had been next week rather than this.)

Less visibly, Garamendi, Crosby, and Sosa, where Souter wrote for the majority on foreign relations federalism and the Alien Tort Statute, are where one might see an altered dynamic.  Sosa’s split-the-difference caution might be up for grabs, with a likely return of the ATS to the docket rather than later.  In Crosby and then Garamendi, he worked from old-line premise of federal supremacy.  That carried the day in Garamendi by only a single vote, with Ginsburg, Stevens, Scalia, and Thomas in dissent.  Garamendi is already under stress after Medellin, with Roberts replacing Rehnquist (another example of how ideological confreres can go their different ways).  One question you won’t hear in any confirmation hearing:  how do you feel about Barclays Bank v. Franchise Tax Board?  Its revival may be among the new directions of a reconstituted Court.