Alex Blaze

Justice Stevens will retire this summer

Filed By Alex Blaze | April 09, 2010 2:00 PM | comments

Filed in: Politics
Tags: bowers v. hardwick, john paul stevens, lawrence v. texas, supreme court

This will be John Paul Stevens's last session with the Supreme Court. He's just short of 90 and has been an associate Justice since Ford nominated him in 1975. Right now he's the only Protestant in the Court, and he's the second longest serving and second older Supreme Court Justice in US history.

The replacement speculation will be raging all summer, but first I ought to say how glad I am that he was able to work through the Bush years so that GWB wouldn't have replaced him with another conservative ideologue who's 40-something. That takes stamina.

Stevens was on the right side of sodomy laws cases in both Bowers v. Hardwick in 1986 and Lawrence v. Texas in 2003, prompting Justice Kennedy to write for the majority in Lawrence:

Justice Stevens' analysis, in our view, should have been controlling in Bowers and should control here.

The Court may be excused by some for getting it wrong in 1986 considering homophobia was stronger then, but Stevens and saw the issue as about private, consensual adult behavior instead of the state "approving" of homosexuality right from the beginning. He was also in the majority in gay people's other big Supreme Court win, Romer v. Evans.

Expect the punditocracy is going to refer to him as a "liberal" over these next few months (the Washington Post goes further and says he's "on the left"... only in the country where Obama's a socialist), that's not what he thought of himself. He was nominated by a Republican and considered his politics conservative:

Stevens, however, is an improbable liberal icon. "I don't think of myself as a liberal at all," he told me during a recent interview in his chambers, laughing and shaking his head. "I think as part of my general politics, I'm pretty darn conservative." Stevens said that his views haven't changed since 1975, when as a moderate Republican he was appointed by President Gerald Ford to the Supreme Court. Stevens's judicial hero is Potter Stewart, the Republican centrist, whom Stevens has said he admires more than all of the other justices with whom he has served. He considers himself a "judicial conservative," he said, and only appears liberal today because he has been surrounded by increasingly conservative colleagues. "Including myself," he said, "every judge who's been appointed to the court since Lewis Powell" -- nominated by Richard Nixon in 1971 -- "has been more conservative than his or her predecessor. Except maybe Justice Ginsburg. That's bound to have an effect on the court."[...]

It may seem surprising that such a passionate leader of the court's liberal wing bristles when he is called a liberal. But the fact that Stevens sees himself as a conservatively oriented centrist makes perfect sense given what judicial liberalism has become. There was a time, years ago in the Warren Court era, when liberal justices like Stevens's predecessor William O. Douglas saw themselves as on a mission to recreate American society along boldly egalitarian lines by discovering newly minted constitutional rights. But for better or worse, this ambitious conception of judicial liberalism has been replaced, like much of political liberalism in America, by a more modest, conciliatory and technocratic sensibility. Even the most liberal justices today have little appetite for the old approach.

Judicial liberalism, in other words, has largely become a conservative project: an effort to preserve the legal status quo in the face of efforts by a younger generation of conservatives to uproot the precedents of the past 40 years. Stevens, who wrote or supported many of those precedents, understandably objects when he feels they are distorted or mischaracterized by justices who were in college when he was appointed to the court. At the same time, merely conserving the achievements of the past is less than what many liberals today ultimately hope for. Can Stevens provide a model for a new vision of legal liberalism in the 21st century?

The speculation is going to turn to replacements now, and maybe getting an actual liberal (or maybe even someone on the left) on the Supreme Court would be a good idea (I'm not holding my breath with Obama). The Washington Post has more on Stevens's replacements:

Aides and Democrats close to the process named three people as likely front-runners for the job: Solicitor General Elena Kagan, whom Obama appointed as the first woman to hold the post, and two appellate court judges, Diane P. Wood of Chicago and Merrick B. Garland of Washington.

Kagan and Wood were interviewed by Obama last spring before he nominated Sonia Sotomayor to the court.

Kagan, 49, was confirmed by the Senate as solicitor general in March 2009. She worked as associate White House counsel under President Bill Clinton, was a law professor at the University of Chicago and served as dean of Harvard Law School.

Wood, 59, is a judge on the U.S. Court of Appeals for the Seventh Circuit. Garland, 57, sits on the U.S. Court of Appeals for the District of Columbia Circuit.

This'll be something to discuss this summer. I expect to be fully annoyed when Republicans find some odd statement from the nominee's past that isn't even that bad in context and beat on it over and over again.

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Michael @ | April 9, 2010 4:52 PM

And the GOBs [Gay Obambots} are already predicting that alleged lesbian Kagan will get the nomination...just like they did before Obama went for Sotomayer, just like they predicted an out gay Cabinet member and Secretary of the Navy.

But before anyone cheer leads for her, may I suggest that anyone that has defended DADT as "constitutional" to the Supreme Court should not be nominated to serve on it? Kragan fans should know that, as Obama's Solicitor General, she did exactly that: DEFENDING DADT last spring in the first of four such briefs by O Inc., this one attacking the lawsuit brought by Jim Pietrangelo who was arrested with Dan Choi last month at the White House.

In her 12-PAGE defense of DADT, she insisted, "Applying the strong deference traditionally afforded to the Legislative and Executive Branches in the area of military affairs, the court of appeals PROPERLY UPHELD [DADT]. [The bar on gays serving openly is] RATIONALLY related to the government's LEGITIMATE interest in military DISCIPLINE and COHESION.”

Now such HOMOPHOBIC arguments would be INDEFENSIBLE on their face, but this can't be explained away as the difference between what Obama has SAID about DADT and what his DOJ does [allegedly without his knowledge wink wink]


While she was the Dean of Harvard's Law School in 2004, Kagan BARRED military recruiters from campus because of DADT, writing in 2005 that DADT is a "wrong [that] tears at the fabric of our own community." And when the Supreme Court, rejecting a suit for which SHE was a co-plaintiff, said in 2006 the Solomon Amendment which denied federal funding to any school barring recruiters was legal, SHE urged students to continue to protest DADT and sent them and faculty an e-mail about:

"...the military’s DISCRIMINATORY employment policy. I BELIEVE THAT POLICY IS PROFOUNDLY WRONG—both unwise and unjust—and I look forward to the day when all our students, regardless of sexual orientation, will be able to serve and defend this country in the armed services.”

Finally, whether or not it's true, as rumored, that SHE is gay herself, Kagan's legal about-face is despicable. Is leaving your conscience at the door a prerequisite for working for this White House?

As for those legalistic automatons who say, "She was just doing her job," while Kagan's crimes of conscience do not rise to the same level [she could, at minimum, assigned a subordinate to write the homophobic brief], at the risk of having the cretinous "Godwin's Law" hurled at me, we must remember we hung those in 1945 who used such a defense.

I had totaly forgotten he was nominated by President Ford. Now the fun begins who will get the nod and we will all go daa when the President nominates somebody we dont know.

Politics is a contact sport with no rules.

Would you entertain the idea that the timing of Stevens' announcement may have been engineered to derail any senate movement on ENDA? The importance of confirming a liberal to the supreme court may be the ENDA pressure relief valve the "masters" needed just as ENDA was building a head of steam. Surely he could have waited until late May. I smell a rat.

Michael @ | April 10, 2010 2:03 AM

Never underestimate the number of rats in this White House gnawing on progress for LGBTs because they believe we are political liabilities.

After wearing out the "our plate is just too fall; two wars blah blah blah" excuse for ignoring DADT, they've switched and succeeding at...a virtual filibuster on repeal with "The Study."

Why not put more on "the plate" to excuse further delaying ENDA?

It's no less comforting, but I think Stevens' early announcement is simply because he and they get that their majority, dysfunctional as it is, will end with midterms, and between Nov. 2nd and the actual seat changes in January there's not enough Viagra in the world to compensate for the political impotence of lame ducks and survivors "going Right."

Alex; I often disagree with your stance, your stridency, and your 'take' ? But I'm helpless but to tip my hat: you really nailed it in this reflection - Steven's take on himself, his role in our nation's history - and his impact on us queer folks. You're entirely adroit sometimes; and we are all grateful that you focus'd this much on one of the most influential 'movers' of our paltry society. I hope this dear old man endures a thousand farewells? He deserves it :)

Justice Stevens' impending retirement is a huge loss to the Court and places a tremendous responsibility on President Obama to replace him with someone of stature with like mind. I am sorry he has to leave before a likely series of cases affecting GLBT persons make it to the Court. That said, despite being in what seems like excellent health and playing tennis daily, he is about to be 90 and his decision is generous to the President and to the rest of us. Let's hope Obama does not take the path of least resistance with the Sentate...this is our future as a free and equal country--or not!

Michael @ | April 10, 2010 10:07 AM

A "series of cases affecting GLBT persons" will only "make it to the Court," in the sense of their granting certiorari to hear the cases if, as noted above, Obama, Inc., stops fighting certiorari by defending anti-GLBT laws.

And, you must be talking about a different Obama when you "hope Obama does not take the path of least resistance with the Senate."

Franklin Delano Obama?
Harry S. Obama?
John Fitzgerald Obama?
Lyndon Baines Obama?

My hat is off to Justice Stevens. He's a hero to us all.

Robert Ganshorn Robert Ganshorn | April 11, 2010 1:26 AM

I wonder if there is a judge with few enough controversial decisions under his/her belt and enough equivocation to pass the Senate? (joking here) After all, John Roberts was unique in this lack of judicial "fingerprints" beyond having clerked for Rehnquist.

But then, both President Obama and Justice Roberts were editors of the "Harvard Law Review." Most of the rest makes good political theater. There will be much slicing, dicing and hand wringing for the benefit of the American public who knows no better. It will be the "dog days of summer" and Fox and the networks will need something to froth over. In the end, a qualified insider will get the job.

"Members Only Please" I enjoyed this Alex!