Justice David Souter to Retire

On April 30, news media announced that U.S. Supreme Court Justice David Souter plans to leave the Court, although he will remain for the current term, and until a replacement has been chosen.

Souter has never seemed very interested in the problems of minor parties or independent candidates. Although he wrote the ballot access decision Norman v Reed in 1992, which reiterated that strict scrutiny applies (which means that restrictions on ballot access are unconstitutional unless they are needed for a compelling state interest) later that year he was part of the majority in Burdick v Takushi, which said that strict scrutiny only applies if the burden is severe. The problem with that is that whether a burden is “severe” is utterly arbitrary.

Souter supported debate inclusion for government-sponsored debates in the 1998 case Arkansas Educational TV Commission v Forbes, and he supported fusion in the 1997 case Timmons v Twin Cities Area New Party. But, in his separate dissent in Timmons, he said that the argument that the “two-party system” needs to be protected is a strong argument. He said, “There is considerable consensus that party loyalty among American voters has declined significantly in the past four decades, and that the overall influence of the parties in the political process has decreased considerably (scholarly citations omitted). In the wake of such studies, it may not be unreasonable to infer that the two-party system is in some jeopardy. Surely, the majority is right that States ‘have a strong interest in the stability of their political systems, that is, preserving a political system capable of governing effectively. If it could be shown that the disappearance of the two-party system would undermine that interest, and that permitting fusion candidacies poses a substantial threat to the two-party scheme, there might well be a sufficient predicate for recognizing the constitutionality of the state action presented by this case. Right now, however, no State has attempted even to make this argument, and I would therefore leave its consideration for another day.”

This statement encapsulates all the confusion about the meaning of the term “two-party system” that has permeated the United States for almost sixty years. “Two-party system” was coined in 1911 to describe the British party system. It doesn’t mean a system in which only two parties have any influence or power. It is a descriptive term for a system in which two parties are far larger than all the other parties. Two-party systems exist even when the election laws are not discriminatory, for example as in Canada and Great Britain. The idea that voting rights, or the rights of two political parties to jointly nominate the same candidate, should be sacrificed to uphold a supposedly fragile “two-party system” is wholly illogical.


  1. Demo Rep · · Reply

    Hmmm. Party hack Supremes appointed by party hack gerrymander Prezs and confirmed by the super party hacks in the gerrymander Senate ??? Duh.

    REAL Democracy NOW.

    Uniform definition of Elector in Fed/all elections.

    NONPARTISAN nomination and election of all elected executive officers and all judges using Approval Voting.

  2. Not bad for abuse of an item [Political Parties] that was completely ignored by the original Constitution!

  3. Mark Goodair · · Reply

    Britain is no longer a two party system.

  4. billvanallen · · Reply

    Souter was at his worst handling the libertarians challenging Souter’s continued ownership of his New Hampshire property — using the Kelo v City of New London rediculus decision arguement to have the local government in New Hampshire seize Souter’s property for a higher business purpose.

  5. Richard · · Reply

    The definition of “two party system”, in virtually every reference book that defines the term, is that a two-party system is one in which only two particular parties have a realistic chance of controlling the national government. Therefore, Britain is a two-party system. Only the Labour Party and the Conservative Party ever have a chance of forming the government. The fact that other parties are strong enough to elect some members of the national legislature doesn’t change that.

    Even the U.S. had minor party members in Congress, in all Congresses from 1834 through 1872, and 1878 through 1900, and 1910 through 1948 (see The Historial Atlas of Political Parties in the US Congress 1789-1989 by Ken Martis). But the U.S. was a still a two-party system in all those decades.

  6. I must confess; I generally liked Justice Souter on many civil rights and civil liberties issues, and he did manage to show some lukewarm and imperfect support for voting rights issues.

    I wonder with all these case that have come up, why hasn’t someone asked Richard W to submit a friend of the court brief of something like that? By all acounts he is something o an expert on ballot access rules and regulation.

    The Eminent Domain case was probably not a highpoint in his career — although I suspect that he has probably wanted to retire earlier and has gotten a bit cranky.

    Personally, I do see why local cities want to seize control of propety, even for economic reasons. I.e. get rid of ‘bad, ugly’ houses and help start up a new shopping mail.

    It is easy to demonize the process, but when citizen a high quality of life, strong economy and services and low taxes, cities are left with few options.

    Hopefully his replacement will care much more about political rights.

    Are their likely Democratic lawyers and or judges that are pretty good on the (ballot access) issue? Maybe, we could submit a petition to Obama?

  7. Michael · · Reply

    He usually sides with the liberals on an issue. There will be no great changes on the court.

  8. Tom McLaughlin · · Reply

    Rumors Mrs. Ed Rendell may be in the running for Souter’s seat. FYI she was one of the federal judges that ruled in our favor in the Patriot Party vs Allegheny County case regarding the ability of minor parties to cross file candidates in races where the PA election code allows the Ds & Rs to cross file.

  9. I’ve heard rumors that Obama is going to appoint Rod Blagovich’s personal attorney.

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