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Souter vs. Scalia


Born in 1939, David Hackett Souter worked in the Supreme Court as an affiliate judge. He is well endowed with knowledge in law matters with a wide range of experience which emanated from him serving in the capacity of a prosecutor, country’s advocate and has equally sat on the bench as a judge before. Upon being relieved of his duties due to old age, his position was filled by Sonia Sotomayor. He had served in the capacity of an affiliate judge for over twenty years having taken over from William J. Brenan. Justice Souter retired from this career mid last year. Majority of the Americans have always regarded him as being liberal yet others hold a view that he seems not to hold any view ideologically.

On the other hand, Antonin Gregory Scalia is a high ranking affiliate judge in the Supreme Court. His intellect in matters of court cannot be outdone by many judges in the United States (Tinsley & David 2005). He occupied the office back in 1986 to fill the position previously occupied by William Rehnquist. Viewed as being conservative by many, Justice Scalia sought for interpretation of the country’s set of rules (Tinsley & David 2005). He has always been in the front line backing the idea of a very powerful president. Scalia is well known for his stand against rules that support minorities. This man has earned himself a place in the legacy of the United States due to his diverse opinion on matters regarding minor groups (Tinsley & David 2005).

This research paper attempts to compare and contrast Justice Souter to Justice Scalia. It will attempt to bring on the surface similar cases that they have in common elaborating them. For example, what was the take of these two on capital punishment? On the other hand, the paper will shed more light on differences between the two judges and elaborate on them citing examples. For example, what are the ideologies of these two?


In one of the Supreme Court case that involved to what extent the constitution had been followed in determining the punishment on Kansas. Many attorneys held views that he should be served with a death penalty (Tinsley & David 2005). With this discussion in the offing, incumbent justice Souter held a view that, the system of justice which was to be used had to deliver acceptable results in all perspectives. He continued shedding more light on this saying that, the death punishment provided for in the America’s set of rules was questionable and not very clear (Tinsley & David 2005). He took his time and compiled a report of almost four pages making dispositions on just how inaccurate the system was. In his rather intelligent conclusion, Justice Souter observed that, going by the evidence backing up the case; it would not have been in order to slap a death penalty on the accused.

Responding to Souter’s claims, Justice Scalia got interested in giving his view on the same and therefore he wrote in regard to Souter’s four pages, a twelve page report saying that what Souter was claiming would give a room to other critics of the world to attack the punishment by death in America (Richard 1998). He continued to say that there was a growing pressure from within and out to consider review on this punishment. Justice Scalia continued to observe that, those countries that were being too hard on this penalty were just from reviewing theirs and it was even worse than America’s. for the first time however, Scalia supported what Souter had written in his claim, saying that the case at hand, indeed did not deserve death punishment as the evidence was not substantial to warrant that. Thus the two judges held a similar opinion in this matter (Richard 1998).

In another different incidence, Justice Scalia wrote a review some two years back where he stated that, judges need to have simple and clear set of rules apart from what is provided for in the constitutional to prevent them from judging a case basing on which side they are taking. He went ahead to say that, by doing this, he was not only being fair but also being too hard on himself (Richard 1998). Going by this, Justice Souter also seemed to borrow his idea saying that this would help judges to avoid misinterpreting the country’s supreme law besides portraying their respect they have for it.

In yet another case based on constitutional interpretation, Justice Souter and Justice Scalia held different views. Souter while addressing students in a law school in one of the graduations gave his view on the growing demands on the amendment of the American constitution (Richard 1998). His argument was based on what Justice Scalia had said. He made a wake up call for the law intellects to read more than what was meeting the eyes and weigh options. He categorically said that, those who were judging the constitution so harshly were not giving it the right treatment it deserves and there was no need for it to be amended.

Basing his disposition on the experienced he gained while working as a judge, he said that, the society was being undermined to think that judges were supposed to read the set of rules and interpret it for the American people (Tinsley & David 2005). He went ahead to say that the language that had been used in the constitution brings the people of America together. Justice Souter intercepted that the likes of Justice Scalia who were pushing for amendments were causing divisions within the people of America (Tinsley & David 2005). He said that the nation was bigger than those selfish demands which were being made by Justice Scalia and his cohorts. For Justice Scalia to push for individuals to be allowed by the constitution to own pistols, he was asking for too much without having it in mind that even without the constitution allowing people to own pistols, they already own them illegally and it had proved a big threat to the society (Tinsley & David 2005). His advice to Justice Scalia was for him to perish the dream of having a lenient set of rules anytime soon. Justice Scalia had attempted to contradict the rule of law when he became a member of the law back in the days although he did not succeed. Unlike Justice Souter he explained in his report that judges should be given the responsibility to interpret the constitution for the people.

In the widely discussed topic of abortion, these two judges have their share. Justice Scalia maintains his stand that constitutionally; there is no right for an individual to carry out abortion (Tinsley & David 2005). He proceeds to say that if persons indeed see the need to have it, then it should be added in the constitution (Tinsley & David 2005). He has always sought support to shoot down any attempt to have it legalized but as fate would have it he was almost losing on that. Through some members of the law pushing for the court to consider some special cases some ten years ago, the court agreed that one can have partial abortion through the prescription of a medical expert (Tinsley & David 2005). In protest to that, justice Scalia responded saying that he strongly believes that, one day, justice will come to the surface besides all those oppositions (Tinsley & David 2005). He went ahead to say that the way of ending the life of a child that had been provided for in that clause was so bogus. The court later considered its decision and scrapped the whole thing. On the other hand, upon Justice Souter occupying the office back in 1992 there was a case that was in the offing in regard to abortion. Given that the previous attorneys had always thrown their weight behind the legalizing of abortion, there were fears that they would lose the case. This did not happen as justice Souter solicited for wide support from another two judges who managed to have the abortion included in the constitution.

In many of his attempts to make things work in his favor, Justice Scalia expressed his take on the minor groups. He has never supported the idea of having some programs being introduced to cater for some groups say for example the Africans living in the United States. His take was widely supported by some members of the law society (Tinsley & David 2005). He differed with those who were coming up with the idea of setting aside some race related systems. Some argued that, by so doing, the discrimination in terms of skin color that had previously existed will be dealt with that way (Tinsley & David 2005).  In response to this, Justice Scalia told the court that, the authority in place cannot cover up for its deed through having such programs. He proceeded to say that all should be treated as Americans and not try to seclude them. This portrayed his rather conservative nature in the eyes of many who read his opinions. In hi response to this, Justice Souter did not make a lot of comments on it but said that there was need for all people to be treated according to what the human rights document states. He warned that failure to observe that will interfere with the rights of others.

In regard to Justice Antonin Scalia, he is believed to have come up with an ideology of elaborating the law of the land commonly known as ‘originalism’. Since its inception in 1789, the constitution of America has received attempts by many to interpret it using diverse traditional perspectives. One of the well known people is Justice Scalia (Tinsley & David 2005). He admits that, although he has not been in a position to convince some people like Justice Souter to borrow his argument, he has however contributed immensely to the discussion. This can be viewed as a vindictive message targeting Justice Scouter following views by sections of some Americans who felt that, although Justice Souter has served the supreme court of America for long his silent nature has made a lot of people think he has not done much in the world of law (David 1994). When asked to comment on his take, Justice Souter observed that Americans had spoken and there was no need to comment on that. As for the immense contribution that justice Scalia has made in the interpretation of the constitution he maintained that he had commented before on that. This portrays his liberal nature.

In another separate incidence, these two gentlemen held different views on whether the proceedings in the Supreme Court should be aired for all to see. When Justice Scalia joined the law fraternity, he would be heard campaigning for televising of the proceedings. At about the same time, Justice Souter declared his stand on the same and maintained that there was need for confidentiality in matters pertaining Supreme Court (David 1994). His argument was that, some cases demanded confidentiality and going on air would then beat the purpose. Justice Scalia on being asked about his opinion on the same recently said that after a number of incidences he has come to perceive it as a bad idea (David 1994).

As far as criminal law is concerned, Justice Scalia and Justice Souter have always had their say. The former observed that punishment by death as allowed by the constitution should be applied to all and sundry regardless of their age (Tinsley & David 2005). However the court argued that, those who are underage by the time they commit the incidence should not be subjected to this law. After sometime, the court considered his plea and it was approved to be applied up to the age of sixteen years (Richard 1998). However, after some study was carried out, the majority of the people did not borrow the idea of underage being subjected to this law and as a result, justice Scalia was defeated. Reacting towards the same, he said that although the majority of the people did not accept that idea, the matter at hand could not be undermined as it was sensitive (Tinsley & David 2005). Justice Souter take on this was equally different. He did not seem to read on the same script with his high court counterpart. He also argued that those who had not reached the age of eighteen years could not be slapped with death punishment. He said that, although life imprisonment is applied on this category of people, it still is not a good idea let alone punishment by death. He further went ahead to say that, the majority is always right and they have spoken so those still questioning should respect their decision (David 1994).

In yet another incidence these two had different opinions on the law breakers who are charged with defiling minors. Justice Scalia sees no need for the court to allow these criminals to testify in a private place away from the eyes of the public (Tinsley & David 2005). However Justice Souter holds the opinion that, the dignity of the accused must be protected and be left to enjoy privacy. He continues to argue that, incase one is proved not guilty he can be accepted back in the community. Incase the reputation and dignity of the accused is infringed, they can sue the state for defamation which will put the court system at stake.

Justice Souter, talking to several judges argued that the need to have all religions treated the same is had to achieve if not impossible. He proceeded to that the federal authority did not any reason whatsoever of taking any measure that would improve one denomination. By doing so, Justice Souter observed that it could amount to violation of the law (David 1994). In the same breath justice Scalia observes that, it is there in records that at no given time did the law of the land declared superiority of Christians over the Jews. This he said, while responding to Justice Souter.


Although Justice Souter retired from law at 70 years, his age is still on the lower side comparing the likes of Justice Scalia who are serving with much vigor yet very old (David 1994). Rumors have it that his heart was never in Washington and that he wanted to go back to where he was born. His rather strange change from being conservative to liberal got many by surprise including President Bush himself. He is a man who has remained strange given that he is not married but was once engaged. He is said to be very secretive and likes privacy (David 1994).

Justice Scalia is still an active member of the judiciary. Married to Maureen McCarthy, the two have nine children (Richard 1998).  He has received both criticism and applause in the line of duty. Scalia is knowledgeable in law and can easily predict opinions way before they come. His arguments are said to be so catchy. Although these two have been brought out as having different opinions in most cases their relationship is still intact (Richard 1998).


David J. (1994) Justice Souter emerges. New York: New York Times

Tinsley E., David H. (2005) David Hackett Souter: traditional Republican on the Rehnquist court New York: Oxford University Press

Richard A. (1998) Justice Antonin Scalia and the Conservative Revival. Boston: JHU Press

Antonin S., Kevin A. (2004) Scalia dissents: writings of the Supreme Court's wittiest, most outspoken justice New York: Regnery Publishing

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