The New York Times reports that Nebraska has opened up a new front in the abortion wars:
Gov. Dave Heineman of Nebraska signed a law on Tuesday banning most abortions 20 weeks after conception or later on the theory that a fetus, by that stage in pregnancy, has the capacity to feel pain. The law, which appears nearly certain to set off legal and scientific debates, is the first in the nation to restrict abortions on the basis of fetal pain. [...]
The Nebraska law grew out of a battle over abortion waged in a far different forum. After an abortion opponent killed Dr. George R. Tiller, a leading late-term abortion provider in Wichita, Kan., last year, Dr. LeRoy H. Carhart, who sometimes worked with Dr. Tiller, said he would carry on his legacy by performing some later-term abortions in his clinic in Bellevue, Neb.
The Court’s most recent big abortion cases both had Dr. Carhart in the caption. 2000′s Stenberg v. Carhart struck down Nebraska’s partial birth abortion ban by a 5-4 vote, holding that the state law placed an undue burden on a woman’s right to an abortion because the law had no exception to allow the procedure when the mother’s life or health was threatened by her pregnancy. The Court changed course in 2007 with Gonzalez v. Carhart. Justice Alito cast the deciding fifth vote to uphold the federal ban on partial birth abortions, whereas his predecessor, Justice O’Connor, provided the fifth vote to strike down Nebraska’s similar law in Stenberg.
The partial birth abortion bans tested the undue burden standard late in a pregnancy, in which the Court in Roe and Casey both recognized the state’s compelling interest in protecting fetal life. This law is very different:
Lawmakers in Nebraska were outraged at the prospect of becoming, in the words of one of the state’s leading anti-abortion groups, the next “late-term abortion capital of the Midwest.” Early Tuesday, the state’s nonpartisan unicameral legislature passed the new measure overwhelmingly, 44 to 5. [...]
The law, which is to take effect Oct. 15, restricts abortion in Nebraska on several fronts. It will forbid abortions after 20 weeks’ gestation. The law it replaces, similar to those in many other states, banned abortions after a fetus reaches viability, or can survive outside the womb. This is determined case by case but is generally considered to come around 22 weeks at the earliest.
The new law grants exceptions only in cases of medical emergency, the pregnant woman’s imminent death, or a serious risk of “substantial and irreversible physical impairment of a major bodily function,” a provision experts interpreted as an effort to exclude an exception based on a woman’s mental health.
Casey‘s undue burden standard is the strictest for abortion regulations before the fetus is viable. By banning abortions of fetuses starting at twenty weeks old, Nebraska’s new law seeks to set a new bright line for fetal viability.
If this case gets to the Court as currently composed (assuming Justice Stevens’s successor will vote as he would have voted), Justice Kennedy will, as ever, be the deciding vote. Although he voted in both Stenberg and Gonzales to uphold the partial birth abortion bans, his vote is less certain for this law. A total ban on abortions of arguably pre-viable fetuses when the state’s regulatory power under Casey is at its nadir is very different from what Kennedy saw in Gonzales as a narrow ban on a particular abortion procedure that was performed when the state’s regulatory power under Casey was at its apex.
Further, if Casey did anything for an instinctual abortion foe such as Kennedy, it was to demolish Roe‘s rigid trimester framework and erect in its place a more fluid, regulation-friendly, assessment based upon fetal viability. The new Nebraska law puts back in place Roe‘s rigidity, even as it cuts away at the abortion right. In doing so, the law invites the Court’s steadfast abortion foes to keep approving of each states’ moving the viability goalposts ever closer to conception, thereby eviscerating the appeal of bright line rules while making a mockery of the serious viability assessments required under Casey.
Finally, one must not forget that Justice Kennedy will have the weight of Casey upon him as the sole remaining member of its majority of himself and Justices O’Connor, Souter, Stevens, and Blackmun. It is doubtful that Kennedy, a man very aware of his unique place on the Court, would vote to uphold a law that strikes at the very core of his career’s most courageous stand.
I should have anticipated that only the second installment of “Friends of F1@1F” would be a bit of a deviation from its mission to highlight the blogs of those I’ve met in line. This week, I bring you an interview with Jeffrey Toobin by Anthony Vitarelli, a pre-F1@1F friend of mine who gave me my blogging start at a now-defunct political blog that he founded and edited.
Here’s an excerpt from the interview:
Vitarelli: [...] I’m curious what your thoughts are on what has made Justice Stevens effective at garnering majorities in cases like Hamdan and Boumediene? If this President were seeking to replicate that aspect of Justice Stevens’s temperament, what would he look for in a nominee’s career to date?
Toobin: One of the myths of Supreme Court confirmations, or Supreme Court appointments, is that there are very good predictive tests of how people will turn out as justices. I mean, look at Justice Stevens. Justice Stevens started out on the bench as kind of a lone eccentric and turned into a tremendous consensus builder. Through the course of all his decades, there were a couple of different kinds of justices that he was.
Obviously, it would be best not to nominate a reclusive scholar, but it is hard to predict what kind of personality would move the very small electorate that is the Supreme Court, especially when you’re largely talking about only one persuadable target. That’s really guesswork. Any nominee that is nominated in 2010 is likely to serve with many justices whose identities we don’t even know yet. All this talk about the kind of personality you want is really guesswork at best.
Vitarelli: In terms of the current careers that potential nominees have, the last nine have been sitting judges on circuit courts. How has that fact helped or hurt the Court as an institution? What advice would you give to the President on this point?
Toobin: I think Obama is right that it is time to end the circuit judge monopoly on the Supreme Court. Historically, the justices have not all come from the appellate court bench. Personally, I don’t think the Supreme Court should be the top step on the civil service ladder for judges – it’s a different job than other kinds of judges. And it’s no coincidence that the court that decided Brown vs. Board of Education didn’t have one person on it that had ever been a judge on any court before that. I think judges with legislative, executive, and business experience would be very good.
Vitarelli: Do you think that the fact that 2010 is an election year will affect which person the President nominates for the Court?
Toobin: I don’t think so. We operate in a 24-hour, 365-day political and news cycle. So I don’t think 2010 is much more politically incendiary than 2009 was. Democrats and Republicans fight all the time, that’s just the world we live in. And I don’t think it matters much.
I don’t know if Obama has actually committed himself to ending the circuit judge monopoly on the Supreme Court with his next nominee. I support the revival of politicians and practitioners on the Court, but am wary of starting that trend with Stevens’s successor. Stevens’s role on the Court as the senior associate justice and the liberal bloc’s leader has become too valuable for Obama to choose a nominee that possesses insufficient institutional knowledge, pre-existing gravitas, and political skills to step right into Stevens’s shoes. There are surely non-circuit judges that could ably fill the Stevens seat, but none of them are on Obama’s shortlist. The President would do well to wait for Justice Ginsburg’s retirement to start experimenting with unknown quantities.
Today’s second Friend of F1@1F is Sabrina Ghaus. Sabrina was one of the thirty-some high school students from Cupertino, CA, who camped out overnight for the McDonald argument on March 2. Below is an excerpt from her reflections on that cold, happy night:
The last time we walked by the marble steps of the Supreme Court, it was 4:30 pm and the late afternoon sun shone lazily in the sky. “Lazily,” because it couldn’t be bothered to provide us with any warmth. The weather itself was briskly chilly.
We sat in a group, 32 members strong on the cold marble, huddling for warmth.
“Do you guys want to camp out?” Mr. Chiang asked.
My eyes widened. YES, I said under my breath. PLEASE.
There was chatter and noise as people argued and complained about the cold.
“Can we go back to the hotel? It’s not worth it!” “But what if we WANT to sleep outside?” “Can we come early in the morning?”
And after about 20 minutes of useless argumentation, it was settled. Those of us who wanted to would camp out. The rest would stay at the hotel.
I couldn’t believe it was really happening.
If you, too, have a story from the Supreme Court sidewalk, please do write to me.
In what may be a hint of who may be Obama’s next Supreme Court nominee, Dawn Johnsen yesterday withdrew her nomination to be the chief of Obama’s Office of Legal Counsel. From the AP via WaPo:
Dawn Johnsen‘s withdrawal – a setback for the Obama administration – was announced late Friday by the White House on a day the capital’s legal and political elites were absorbed in the news that Justice John Paul Stevens would retire from the Supreme Court.
The Senate Judiciary Committee had recommended Johnsen’s confirmation on party-line votes. But several Republicans objected to her sharp criticisms of terrorist interrogation policies under President George W. Bush, and the full Senate never voted on her nomination.
Is this a setback for the Obama Administration as the report says, or Johnsen’s ceding ground so that Obama may name a similarly strident nominee for the Supreme Court? That is, Obama may only have enough political capital for one big, ideological nomination fight, and it’s far more important for his administration to take a stand on the Court rather than the OLC.
From Lawrence Hurley’s Washington Briefs:
Finally, it’s official. Justice John Paul Stevens sent a letter to the White House today announcing his intent to retire after the current term. “Having concluded that it would be in the best interests of the court to have my successor appointed and confirmed well in advance of the commencement of the court’s next term, I shall retire from regular active service as an associate justice,” Stevens wrote.
Chief Justice John G. Roberts Jr. said in a statement that Stevens “has earned the gratitude and admiration of the American people for his nearly 40 years of distinguished service to the judiciary.”
UPDATE: Here’s an excerpt from the Court’s statement, courtesy Tony Mauro at the Blog of the Legal Times:
Associate Justice John Paul Stevens has today sent the attached letter to the White House, notifying President Barack Obama of his retirement from the Supreme Court, effective one day after the Court rises for the summer recess this year. Justice Stevens has served on the Supreme Court for 34 years. He is 89 years old.
This statement seems to say that Stevens is not sticking around until his successor is seated. As I wrote earlier this week, the GOP should be very mindful of the political consequences of stalling the confirmation process into the fall, thereby forcing the Court to return for its next term short of full capacity.
UPDATE II: Mauro has just posted Stevens’s retirement letter:
My dear Mr. President:
Having concluded that it would be in the best interests of the Court to have my successor appointed and confirmed well in advance of the commencement of the Court’s next Term, I shall retire from regular active service as an Associate Justice, under the provisions of 28 D.S.C. § 371(b), effective the next day after the Court rises for the summer recess this year. Most respectfully yours,
John Paul Stevens
“My dear Mr. President” is a very nice touch. And here it is perfectly apparent: Stevens isn’t conditioning his retirement upon his successor’s confirmation.
I’m heading out of town until tomorrow afternoon, so no more updates here. But Tony Mauro is a machine over at the BLT, so keep checking back there for all the latest JPS Retirement news.
Kojo was incredibly gracious and helpfully nudged me back on track when my responses turned digressive. Huge thanks to producer Michael Martinez for setting all of this up.
The Internet is loaded with news blogs and other media that allow everyday citizens to pontificate on the news cycle. But it’s much harder to find sites driven by people who want to report the news independently. We meet a pair of local independent journalists who have taken reporting into their own hands — delivering daily coverage of the Supreme Court and Major League Baseball.
Audio archives, transcripts and CDs will be available approximately 15 minutes after the program ends.
If you’re not in the DC area or near a radio, you can listen live here. As soon as I get a chance tomorrow, I’ll post the recorded audio link.
2010 National Champions! Good game Butler – I hope in 20 years you guys will be where we are today. You certainly deserve it.
The trifecta of recent Justice Stevens interviews has pushed to the fore speculation about his successor. Such speculation has been going on for quite a while–F1@1F has been at it since its first day of existence. This weekend, two members of the Senate Judiciary Committee, responded to the interviews with their own thoughts.
From FOXNews.com yesterday:
Senate Minority Whip Jon Kyl, R-Ariz., speaking on “Fox News Sunday,” warned President Obama not to try nominating anyone “overly ideological” to replace Stevens, who is known as the leader of the liberal wing of the court.
He suggested the party did not want anyone so outspoken as Sonia Sotomayor, who was picked to replace former Justice David Souter last year, and said the decision on whether the GOP will filibuster will “all depend” on who the next nominee is.
“I think the president will nominate a qualified person. I hope, however, he does not nominate an overly ideological person. That will be the test,” Kyl said. “And if he doesn’t nominate someone who is overly ideological, I don’t think — you may see Republicans voting against the nominee, but I don’t think you’ll see them engage in a filibuster.”
He said Republicans would only filibuster under “extraordinary circumstances,” the standard agreed to after a series of clashes in Congress over judicial nominees under former President George W. Bush.
At least one Democrat is taking Kyl’s threats seriously.
Stevens told The Washington Post he “will surely” retire while Obama is still president. But Sen. Arlen Specter, D-Pa., told “Fox News Sunday” he hopes Stevens will wait until next year to do it, when the politics in Congress would potentially be a bit less toxic.
“I think the gridlock in the Senate might well produce a filibuster, which would tie up the Senate on a Supreme Court nominee,” Specter said. “I think if a year passes there’s a much better chance we can come to a consensus.”
Back in January, immediately after Scott Brown’s Senate win, I wrote that President Obama may be able to use Republican apoplectic overconfidence to his advantage:
Brown’s election could very well result for the GOP in a case of “be careful what you wish for” should Stevens step down this summer.
To be sure, without 60 guaranteed votes, Obama may move away from choosing a nominee with the liberal record of Judge Diane Wood of the Seventh Circuit. But then again, if he chooses her–a natural heir to Justice Stevens–and the GOP as a result holds up a Supreme Court nomination through November, the Democrats will more potently than ever be able to paint the 41-person GOP minority as an obstructionist, nihilist, and extremist Party of No.
In other words, Obama may be wise to continue with his next nominee as planned–if indeed he planned to pick a proven liberal–just to show that when given a high enough platform and just enough rope, today’s GOP will hang itself.
With Republicans resolving to run on repealing and replacing the PPACA, expect some commentators to reflect Senator Specter’s squeamishness in the face of Senator Kyl’s threats. They will clutch Massachusetts ballots and wave the Court’s Citizens United opinion so to reveal doomsday visions of insurance companies emptying their freshly unchained coffers into the 2010 campaign on a multimedia effort to smear all incumbents who voted for health care reform as fascists, socialists, and communists.
In response to the GOP’s resolution, Obama told them to “go for it.” He might as well have been speaking about Republicans’ including any of his possible judicial nominees in their Party of No platform for the midterm election.
Specifically, Obama must understand that if the GOP filibusters or stalls his next Supreme Court nominee into the fall, then the Republicans will be the ones that suffer come the first Monday in October. If Justice Stevens conditions his resignation upon the confirmation of his successor, then Obama will be able to paint the GOP as a group of blackhearts gleefully depriving a 90-year-old man of his hard-earned retirement. And if Stevens unconditionally steps down, then a Congressional minority will be held responsible for keeping the Court from operating at full capacity at the start of next term.
In either situation, the Court could become a big issue for the final month before Election Day. Don’t be surprised if the Chief Justice, facing a massive stack of cert. petitions awaiting the justices for their late September conference, extends his public colloquy with Obama to join him in admonishing the Senate minority to cease playing politics with the Court.
UPDATE: Just as I posted this, Dahlia Lithwick’s latest, “Short Shrift: The Supreme Court Shortlist as Political Anthropology,” popped up in my reader:
As an anthropological document, the Bloomberg News list [of Wood, Kagan, and Garland] reveals a good deal about the general fatigue of the court-watchers. We’ve become so reliant upon the old scripts about “activists” and “umpires” and abortion and religion that we prefer them to experimenting with new ones.
I believe that this latest round will be the last to follow the old scripts, and even then, it may depart from them.
- Garland will be the only nominee of the three that needn’t depart by choice or force from the old script. He’s a moderate, and the Republicans will not push hard against him if he’s nominated.
- Kagan’s nomination will be novel only because she is not, nor has she ever been, a federal judge. Historically, however, Solicitors General have been commonly put forward for the Court: the last SG to have been nominated was Bork, the last to have been confirmed was Thurgood Marshall. Still, if you thought that Sotomayor reached a certain kind of performance art perfection in her confirmation hearing stonewall, Kagan’s may be even more fantastically opaque.
- While Wood is a federal appeals judge, she will be the first full-fledged liberal nominee to the Court since Thurgood Marshall, even if her liberal jurisprudence would have been deemed only slightly left of center in his time. Further, with her extensive paper trail and Congress’s Democratic majority, Wood may even break the post-Bork spell on fearful, know-nothing confirmation hearings. If she can finally kill off that bit of the old script, then Obama and future presidents of either party may begin diversifying their Supreme Court shortlists to include other capable nominees, judges or not, who can be confirmed for what they say, not for what they don’t say.
UPDATE II: Newsy.com has compiled a video roundup of the recent Stevens hubbub:
One of the most gratifying parts of this project has been meeting all sorts of people in the early morning line. And as it turns out, I’m not the only person who goes home and writes about the experience.
I offer anyone who has stood in line with me–or in line without me–who has written about his or her experience at the Court to send me a link, and I will post it here.
The first blogger in my Friends of F1@1F feature is Brandon Forbes. Forbes was twenty-sixth in line for Tuesday morning’s arguments and blogs at Good Gov, Y’all. He recapped his experience outside and inside the Court with an entry titled, “Sitting Courtside, Breyer & Scalia Give Me Hi-Fives,” in which, among other things, he posited his own thoughts on a conversation we had while shivering on First Street:
In our pre-dawn discussion, Mike voiced his love of The Brethren, an Armstrong and Woodward SCOTUS tell-all that caused much controversy when it was published in the ‘late 70s with its inside look at the Burger Court and which I tried to read in high school and now need to re-read. Anyway, he made an interesting case for Potter Stewart as being the last “pure judge” on the Court, meaning, I think, that he was appointed outside of the ideological box that has been present in judicial discourse since the late ’70s. One could make the case that Stevens also fits this bill, at least at his appointment, though he has drifted further and further to the left in reaction to the Rehnquist/Scalia conservatism that emerged in the late ’80s, a conservatism which now generally wins if the current Court splits 5-4 (see Citizens United). I’d like to look into this more, but my initial thought is that Roe might be responsible for this divide, much in the same way as West Coast Hotel v. Parrish could be seen as the dividing line for the modern interpretation of the Commerce Clause. In other words, judges appointed after Roe have the ideological boxes of the culture wars to deal with before they get on the Court just as judges after West Coast Hotel had the necessity of having a robust interpretation of the Commerce Clause as requisite for getting on the Court. But maybe that’s a bit of a convoluted analogy. A way to say it simpler might be: Roe v. Wade has been the benchmark case since 1973 for determining who gets on the Supreme Court (either supportive or against), and Stewart didn’t have to deal with that hanging over his confirmation. Interesting discussion, anyway.
I do, in fact, believe that Justice Stevens does fit the Stewart mold, but Brandon makes a good point that this has been obscured by the Court’s post-Roe politicization, in which the Court, as Jeffrey Toobin recently noted, “has become a partisan battlefield.”
Indeed, Stevens has consciously strived for the survival of Stewart’s legacy despite the rise of rigid ideology on the Court. As Jeffrey Rosen wrote in 2007,
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.”
In his one of his final written opinions, Justice Souter, another judge in the Stewart–if not Harlan II–mold of judicial conservatism, planted a seed of wisdom for future justices who follow in his and Stevens’s footsteps once today’s age of politically-aligned ideology subsides:
Changes in societal understanding of the fundamental reasonableness of government actions work out in much the same way that individuals reconsider issues of fundamental belief. We can change our own inherited views just so fast, and a person is not labeled a stick-in-the-mud for refusing to endorse a new moral claim without having some time to work through it intellectually and emotionally. Just as attachment to the familiar and the limits of experience affect the capacity of an individual to see the potential legitimacy of a moral position, the broader society needs the chance to take part in the dialectic of public and political back and forth about a new liberty claim before it makes sense to declare unsympathetic state or national laws arbitrary to the point of being unconstitutional. The time required is a matter for judgment depending on the issue involved, but the need for some time to pass before a court entertains a substantive due process claim on the subject is not merely the requirement of judicial restraint as a general approach, but a doctrinal demand to be satisfied before an allegedly lagging legal regime can be held to lie beyond the discretion of reasonable political judgment.
The whole dissent is worth reading. I am convinced that a generation from now, Souter’s parting words will steer a Court that reflects a society confident enough to allow a judge to judge, rather than force a justice to fit facts into predetermined ideological frameworks. Just as Harlan and Stewart, both Eisenhower nominees, entered the Warren Court comparatively conservative to their stridently liberal brethren but now appear to be sober moderates, so too will Stevens and Souter be remembered as moderate despite their reputation as liberals from serving in a politically distorted age on the Court.
In other words, the principled judging qua judging of Harlan, Stewart, Stevens, and Souter has been an enduring casualty of the Warren and early Burger Courts’ politically liberal overreach and the subsequent politically conservative overcorrection of the Rehnquist and early Roberts Courts.
But I don’t think it is too offensive for this Jew to say on this Easter day that the moderates’ jurisprudence will be resurrected by a confident public that trusts judges’ judgment and votes for Presidents and Senators that reflect America’s transcending the current culture wars.
If this vision of the late Roberts Court looks more like the apocalypse scenes in the Book of Revelations than the Gospel, then you should check out Josh Blackman’s blog. Blackman and I got to know each other as we liveblogged the McDonald line. In addition to his libertarian-originalist blogging and his FantasySCOTUS league, Blackman has beatified, through non-profit incorporation, the first Justice Harlan as the Court’s proto-originalist. Through his Harlan Institute, Blackman seeks to deepen schoolchildrens’ understanding of the Constitution–an honorable goal, even if in pursuing it, he hopes to perpetuate a particular ideology into the next generation that gets in the way of my own vision for how we view the Court and politics.
But I come not to quibble the future with Josh, but rather to praise his prankster skills. Yesterday, he posted a story titled, “FantasySCOTUS.net to receive 30 min advance notice before opinions issued to curb cheating“:
When I mentioned this unfortunate fact [of FantasySCOTUS cheating] to friends at the Supreme Court, they clued me into a little known SCOTUS secret. Certain reporters, news agencies, and blogs, receive 30 minute advance notice before opinions are issued. While the Court does not release the holding of the opinion, the Clerk of the Court sends a brief e-mail, listing the opinions that will be issued.
At first I was incredulous, and didn’t believe this was possible. But at some point during the Rehnquist Court, Nina Totenberg, the doyenne of One First Street, used her enormous clout to push for this privilege. She was tired of hiking to the Court on days when lousy opinions were issued. Once she asked for it, the Court could not say no. Apparently, Lyle Denniston at SCOTUSBlog has been receiving these tips for years. No wonder he is always able to get post such thorough summaries so quickly.
Like any cert grant, in order to qualify for this special privilege, the Rule of 4 applies. Justice Sotomayor came through, and joined the Chief Justice, Justice Alito, and Justice Thomas. Apparently the Junior Justice is a serious Fantasy Sports fan, and fell in love with the league, and was appalled that people would cheat. Sadly, Justice Scalia decided to recuse, due to some of my recent publications criticizing his views in McDonald.
Justice Breyer, joined by Justice Stevens and Justice Ginsburg, dissented from the issuance of our petition. He does not seem to be a fan of FantasySCOTUS.net. In a verbose opinion, he wrote that while liberty must be active, fantasy court leagues must be passive, and we were not worthy of this privilege. Paraphrasing Chief Justice Roberts famous admonition from Parents Involved, Justice Breyer wrote “the way to end lame fantasy sports leagues is to end lame fantasy sports leagues.”
That’s a hell of a clever April Fools’ joke. Seems credible at first, but steadily slides into farce and, ultimately, self-deprecation. Very good stuff.
If you have written about your SCOTUS experience, please do send me the link. If I get a few more stories, I will also add an F1@1F Friends link to my blogroll.
UPDATE: Josh Blackman writes in,
“Nice dig at Harlan [Institute] . It really isn’t ideological. [Harlan Institute's] not about institutionalizing originalism. Its about teaching about the history of the constitution to influence decisionmaking. There is a difference. If I do my job right w harlan, kids will learn enough about history to make themselves informed and need not reach the results I wish.”
I quibble no longer: that’s an absolutely honorable goal.
Easter is actually on Sunday. Jesus is still technically “dead” right now. The Christians will be unhappy if you resurrect him too soon.
Point taken. I’ll be sticking to my matzoh from now on. At least Brandon and I will be on the same page for who to root for in the Final Four tomorrow.
UPDATE III: One day after this post, the NYT has published an interview with Justice Stevens by Adam Liptak. Along with getting even closer to Justice Stevens’s internal deliberations upon his perhaps-imminent retirement, the interview also gets to Justice Stevens’s self-conception as a judicial conservative by touching upon his majority opinion in Kelo and the final paragraph of his Baze v. Rees concurrence:
His views have generally remained stable, he said, while the court has drifted to the right over time. “To the extent I look back at earlier situations,” he said, “I really don’t think I’ve changed all that much.”
Often, he added, the law requires a certain result, as in the court’s 2005 decision in Kelo v. City of New London, which allowed local governments to use the power of eminent domain to take private property for business development.
“The Kelo case was one of my most unpopular opinions, and that was one where I thought the law really was pretty well settled on the particular point,” he said.
Asked if he would have answered the question presented in the case differently had he instead been a legislator, Justice Stevens said probably yes.
In the area of capital punishment, though, he said his views had shifted.
“I certainly would not have expected during my first years on the court to have written an opinion like I did in Baze,” he said, referring to Baze v. Rees, the 2008 decision that rejected a challenge to lethal injections. Though Justice Stevens voted with the majority, he wrote that he had come to the conclusion that the death penalty violates the Eighth Amendment. He went on to say that his conclusion did not justify “a refusal to respect precedents that remain a part of our law.”
“I’m still a member of the court, and I still have to work,” Justice Stevens said. “I never really agreed with Justice Brennan and Justice Marshall that your own personal view on the issue should prevent you from participating. You’re still a member of the team, and the team has to confront the problem.”
But that did not mean Justice Stevens, who in 1976 voted to reinstate the death penalty, was satisfied with the court’s capital jurisprudence.
“There are a number of death cases that troubled me,” he said. The Baze opinion, he added, “was really my reaction to the developing jurisprudence, which I think moved in a direction that I didn’t expect and is not correct.”
At noon next Thursday, April 8, I will be on The Kojo Nnamdi Show to talk about F1@1F. Kojo’s a legend here in DC, so I am very honored that he’s taken an interest in my project.
I’ll post a reminder next week. And if you can’t catch it live on WAMU 88.5 or don’t live in the DC area, I’ll be sure to put up a link after the broadcast.
UPDATE: I’ll be getting pushed back a half-hour to 12:30, so adjust your schedules accordingly.