David Hackett Souter

As of mid-2003 Souter continued to occupy a pivotal seat on the Supreme Court, using his polite and friendly personality, his patient and contemplative temperament, and his diligent work ethic to earn respect and win support across the ideological spectrum. However, many

of his more noteworthy decisions between 1995 and 2003 came in a dissenting role.

For example, Souter dissented from a Supreme Court decision holding that a sentence of two consecutive terms of 25 years to life in prison under California's Career Criminal Punishment Act, also known as the Three Strikes Law, on a conviction of two counts of petty theft with a prior conviction, was neither contrary to, nor an unreasonable application of, clearly established federal law. Lockyer v. Andrade, 123 S.Ct. 1166, 155 L.Ed.2d 144 (U.S. 2003). The defendant had been convicted of stealing videotapes worth $154. The defendant "did not somehow become twice as dangerous to society when he stole the second handful of videotapes," Souter said. "His dangerousness may justify treating one minor felony as serious and warranting long incapacitation, but a second such felony does not disclose greater danger warranting substantially longer incapacitation," Justice Souter argued. If the defendant's sentence is not grossly disproportionate to his crime under the Eighth Amendment's proportionality analysis for determining whether a punishment is cruel and unusual, Souter concluded, the principle would have "no meaning" in any other case to which it might apply.

Souter also dissented from a majority ruling that officers may conduct a routine, suspicionless drug interdiction without informing bus passengers that they have the right not to cooperate and to refuse consent to searches. United States v. Drayton, 536 U.S. 194, 122 S.Ct. 2105, 153 L.Ed.2d 242 (U.S. 2002). The Court's decision expanded upon an earlier case holding that the FOURTH AMENDMENT permits police officers to approach bus passengers at random to ask questions and to request their consent to searches, provided a reasonable person would understand that he or she is free to leave. Souter conceded that "[a]nyone who travels by air today submits to searches of the person and luggage as a condition of boarding the aircraft," and that "is universally accepted that such intrusions are necessary to hedge against risks that … even small children understand." However, "the commonplace precautions of air travel have not, thus far, been justified for ground transportation … and no such conditions have been placed on passengers getting on trains or buses." There is therefore an air of unreality about the Court's explanation that bus passengers consent to searches of their luggage to "enhanc[e] their own safety and the safety of those around them," Souter wrote.

Many of Souter's recent dissenting opinions have earned him a growing reputation as a liberal-leaning justice who broadly interprets the constitutional rights of criminal defendants. However, Souter sided against the defendant in Atwater v. City of Lago Vista, 532 U.S. 318, 121 S.Ct. 1536, 149 L.Ed.2d 549 (U.S. 2001), where he wrote the majority opinion in a 5–4 decision holding that the Fourth Amendment does not forbid a warrantless arrest for a minor criminal offense, such as a misdemeanor seatbelt violation punishable only by a fine.

The case arose when a Texas police officer observed that a motorist driving a pickup truck, as well as her two children, were not wearing seatbelts. Souter rejected the motorist's contention that "founding-era common-law rules" forbade peace officers from making warrantless misdemeanor arrests except in cases of "breach of the peace," a category the motorist claimed was then understood narrowly as covering only those non-felony-level offenses "involving or tending toward violence." In the years leading up to American independence, Souter observed, Parliament repeatedly extended express warrantless search authority to cover misdemeanor-level offenses not amounting to or involving any violent breach of the peace. Souter refused to mint a new rule of CONSTITUTIONAL LAW forbidding custodial arrest, even upon PROBABLE CAUSE, when conviction could not ultimately carry any jail time and the government could show no compelling need for immediate detention.