Mr. Souter Comes to Town

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The clerks will be even more overworked than their peers, since tradition dictates that the court's newest member must assume additional duties for the eight other Justices. Souter will be, among other things, the court's private doorkeeper, messenger and designated party giver. Last week Justice Anthony Kennedy (until now the low Justice on the totem pole) called in Souter, in part to discuss handing over the "new boy's duties." Souter will sit on the far left of the bench in a chair recently built by the court's carpenters; he will be the last person to enter or exit the chamber. When the Justices meet in private sessions, Souter will open and close the door as well as receive and relay messages. He and his clerks will record which of the many thousands of cases the Justices have decided to accept for argument. And the newest Justice will be responsible for organizing the court's annual staff Christmas party. "It's likely to be a pretty meager affair," warns Rath, aware of bachelor Souter's frugal habits.

By missing the start of court deliberations, Souter will be ineligible to vote on two major cases to be decided this term. Last week the court heard arguments in Board of Education of Oklahoma City v. Dowell, a case that challenges the power of judges to continue court-ordered integration plans after a school system has stopped discriminating. The Oklahoma school board is petitioning for relief from a 1972 federal district court ruling that found the school system segregated and ordered a busing plan to promote integration. Almost 20 years later, the schools are again divided along racial lines, but the board claims this is a result of local housing patterns, not of district policies.

Souter also misses the chance to decide on a challenge to the constitutionality of heavy punitive damages in civil suits. Oral arguments on that issue were presented last week in the case of Pacific Mutual Life Insurance Co. v. Haslip. Lawyers for the company claim that a $1.1 million punitive-damage award imposed in 1987 by a jury, in a case where $4,000 in actual damages was awarded, violates 14th Amendment due-process rights. Proponents of the damage awards argue that large jury penalties help prevent future misconduct.

Feminists who opposed Justice Souter's nomination are much more interested in where he will stand on one of the first cases to arrive before the court after his swearing in: United Auto Workers v. Johnson Controls. The company, which makes automotive batteries, excludes all fertile women of childbearing years from jobs that would expose their fetuses to lead, which can cause birth deformities. Women employees sued in 1984, claiming the policy was intentional discrimination that limited their right to choose employment opportunities over reproduction, and thus was illegal under the 1964 Civil Rights Act.

Two lower courts have backed the company, but two prominent conservative federal court judges, Frank Easterbrook and Richard Posner, sided with the challengers. Court watchers say this case will be Souter's first chance to demonstrate his sensitivity -- or lack of it -- to the issues of sexual politics that prompted what little opposition there was to his setting up bachelor housekeeping in Washington.