Rene Reyes

Document Type



Justice David Souter retired from the United States Supreme Court at the end of the 2008–2009 term. Reflecting upon his legacy, a number of commentators have identified Souter’s joint opinion in Planned Parenthood v. Casey as his most noteworthy contribution to the Court’s constitutional jurisprudence. But beyond Casey, surprisingly few of Souter’s opinions have been identified as particularly remarkable or enduring. This suggests that Justice Souter’s judicial legacy may have been rather modest— perhaps owing to the fact that, as a member of the Court’s liberal minority, he was often in dissent in key cases. However, this Essay argues that Justice Souter’s legacy was potentially quite profound in at least one area of constitutional law: liberty of conscience under the First Amendment’s Religion Clauses. During Souter’s tenure, the Supreme Court decided nearly two dozen cases involving significant Religion Clause issues. Souter’s opinions in these cases reveal a commitment to protecting liberty of conscience that is notably more explicit and consistent than that of any other Justice currently sitting on the Court. Moreover, to a degree that has been largely underappreciated, Justice Souter’s opinions are consistent with many of the most compelling historical and normative accounts of freedom of conscience that have been offered by liberal and conservative scholars alike. Souter thus leaves behind a jurisprudential legacy that has the potential to lend intellectual and theoretical coherence to an area of law that has long been criticized for its inconsistency and internal tensions.