This is disturbing. It has long been a conservative fear/criticism that liberal justices are "legislating from the bench" in what is often termed "judicial activism": in essence, writing the law instead of interpreting it. In a speech to this year's graduating class of Harvard, Souter acknowledged in shockingly explicit terms that this was, in fact, how he viewed his duty as a (now retired) USSC justice: http://news.harvard.edu/gazette/sto...ce-david-souters-speech/?loc=interstitialskip Not only is this an acknowlegement that he, as a matter of policy throughout his career, violated his oath, but it is an argument that this is the way it should be and a campaign for Obama to appoint a replacement for him who follows in his footsteps - and for the graduates of Harvard Law to do the same. Souter gives two examples, one being Plessy vs. Ferguson vs Brown vs Board of Education (the "separate but equal" cases): Here he's applying his own incorrect standard in order to prove his case, in essence assuming the outcome instead of arguing it. The second sentence requires a logical argument to support it: [in response] Why not? The answer, presumably, is that the judges of 1896 were racist and therefore used their own values to judge the issue - the same mistake Souter is saying he based his life's work on and should continue. But a faithful reading of the Constitution reveals that the flaw in the morality of the men of 1896, which certainly also existed in 1787, does not appear in the Constitution. The constitution guarantees equal protection under the law -a protection that was superflouously reiterated with the 14th Amemndment. So "separate but equal" was against the Constitution in 1896 and the court erred. It is shocking for him to argue that the court was correct in both 1896 and in 1954. Further, one of the racist justices is 1896 recognized his own duty and looked past his own racism in crafting a dissenting opinion: http://www.usatoday.com/news/opinion/forum/2010-06-16-column16_ST_N.htm And, of course, if a flaw exists in the Constitution, a process already exists and has proven successful for fixing those flaws. Though equal protection itself wasn't one of those flaws, slavery introduced others, such as the 3/5ths compromise. The above quote was paraphrased from an op-ed about the Souter speech, which also says: I couldn't agree more. Souter's model would have full national sovereignty residing in the hands of a panel of 9 lifetime-appointed rulers. His vision is not democracy and it is not what this country is about.  Also, though not typically considered the "swing vote" because despite being appointed by/as a conservative he became fairly heavily grounded in liberalism, with the knowledge of the above, he should be considered in that light. And since many of his decisions were apparently based on an improper view of his mandate, a great many of the decisions of the court over the past 20 years must now be called into question.