David Ingram of the National Law Journal is reporting that Patrick Leahy may push for retired justices to sit for cases in which other justices recuse themselves.
According to the article, Justice Stevens made this recommendation to Leahy (D-VT), the Chair of the Senate Judiciary Committee.
This seems to me a politically loaded suggestion. There has already been much talk about Kagan’s potentially high recusal rate over the next few terms as the Court continues to hear cases that her office had briefed in the lower courts. On divisive issues, Kagan’s absence would lead to 5-3 victories for conservatives or ideological deadlocks at 4-4.
I cannot imagine that the GOP members of the Judiciary Committee will agree to this plan. If Kagan does not recuse herself on a case in which a conservative may be obligated to do so, two of the substitutes–Souter and Stevens–would be a fifth vote on the left. It is not inconceivable that these two retired ringers could cut away at the Roberts Court’s business-friendly precedents, as the Court sometimes goes shorthanded on cases concerning corporations in which justices may own stock.
O’Connor, too, exited the Court to the left of Anthony Kennedy on campaign finance, church-and-state, abortion, and affirmative action cases – all issues that have been cut back since Alito succeeded her. However, recusals on these cases are less likely. That is, unless some advocacy group somehow finds a not-too-distant relative of Justice Scalia who is an abortion doctor in Nebraska that is willing to be a named plaintiff in a federal case.
Because I know next to nothing on the merits of patent law, my predictions for the now overlong-awaited Bilski decision will extend no further than this: Justice Stevens will be its author.
Two factors lead me to this conclusion. First, Stevens and Thomas are the only two justices yet to author a majority opinion from the November sitting. Given that Stevens–and not Thomas–has the history of landmark tech-oriented decisions. In fact, he has contributed one a decade:
- 1978: FCC v. Pacifica Foundation – Broadcast media and the First Amendment
- 1984: Sony Corp. v. Universal City Studios – Video cassette recorders and Copyright
- 1999: Reno v. ACLU – Internet and First Amendment
If you consider 2010 to be part of the first, rather than the second, decade of the 21st century, then it looks like Stevens is due one more swing for the ages.
One can assume Stevens will write for the liberals if Bilski has any left/right component to blame for causing the Court’s significant delay in releasing the opinion. I refuse, however, to make this assumption myself ever since I rightly predicted Justice Kennedy to author Salazar v. Buono, but ate my words about what side he’d come down on. Of course, Stevens may be more predictable than Kennedy, but I’m too spooked to hazard even the safest guess for this case in a very unfamiliar field. I’ll leave that to these guys.
If Stevens is not the author, I have a backup prediction: the long wait for this case means that he has crafted a lead dissent out of a majority opinion he lost in the drafting process.
I was at the Court today for its announcement of six brief opinions. While there, I was lucky enough to see a Breyer Blooper.
Two of the decisions–American Needle v. NFL and Lewis v. City of Chicago–were unanimous. Per my oral argument report from Lewis, Justice Scalia’s opinion today in favor of the black firefighters’ disparate impact claim against the City of Chicago was hardly surprising. Still, Justice Scalia’s distaste for disparate impact law was palpable as he read a particularly long summary of a particularly brief opinion. It was almost as if he was punishing us for his not only having to continue considering disparate impact cases, but also that he found it necessary to rule in favor of the plaintiffs in this case.
A quick recap of the case: the EEOC filed suit on behalf of a class of black firefighters in Chicago claiming that the City’s use of a particular test to determine fire department hirings was discriminatory in its impact. The district court agreed, awarding backpay and ordering the fire department to hire to 132 class members. The Seventh Circuit reversed, holding that the firefighters’ suit was time-barred. Today, the Court held that the black firefighters’ disparate impact claims were not time-barred, thereby sending the case back to the Seventh Circuit to determine whether or not to modify the District Court’s original relief.
As for American Needle, the Court sided with Drew Brees by holding that National Football League Properties’ decision to grant exclusive intellectual property licenses is covered by §1 of the Sherman Antitrust Act, which makes illegal contracts or combinations made in restraint of trade. The Court, however, did not decide whether NFLP acted illegally; rather, it rejected one standard–”single entity theory”–in favor of another–”Rule of Reason”–for the lower courts to use on remand in determining illegality.
The Court also dismissed as improvidently granted Robertson v. United States ex rel. Watson over a vigorous dissent by Chief Justice Roberts and joined by Justices Scalia, Kennedy, and Sotomayor. The Court left in place a ruling by the court of appeal that a private person may bring an action for criminal contempt rather than in the name of the United States. The dissenters would have held that the “terrifying force of the criminal justice system may only be brought to bear against an individual by society as a whole, through a prosecution brought on behalf of the government.” In other words, any action that makes this aspect of criminal law less scary is unconstitutional. Our Lockean social contract, wrote Roberts, takes “the sword of justice, to be used to smite those who violate the criminal laws, [...] out of private hands and turn it over to an organized government, acting on behalf of all the people.”
Justice Sotomayor, joined by Justice Kennedy, added her own brief dissent to clarify her “understanding that the narrow holding [Roberts's dissent] proposes does not address civil contempt proceedings or consider more generally the legitimacy of existing regimes for the enforcement of restraining orders” similar to the one Watson secured against–and was repeatedly violated by–Robertson. Regardless of her more modest dissent, Sotomayor may have shown herself to be, as predicted, to the right of Justice Souter in her criminal law jurisprudence. A few more years and a dozen more opinions are required for that observation to become a conclusion, however.
Justice Stevens was today’s busiest man. He wrote the unanimous opinion in American Needle, concurrences in United States v. O’Brien and Hardt v. Reliance Standard Life Insurance, and a dissent in United States v. Marcus.
In addition to its decisions in argued cases, the Court GVR’d (granted, vacated, and remanded) Jefferson v. Upton, requiring the lower federal courts to consider whether it erred in accepting a state court’s findings that the attorneys for the petitioner, who is now on death row for murdering a co-worker on a fishing trip, should have investigated the mental effects of having his head run over by a car when he was two years old. Justice Scalia, joined by Justice Thomas, dissented.
The Court also granted certiorari in six cases to be heard next term. Two of these cases, Arizona Christian School Tuition Board v. Winn and Garriott v. Winn will be consolidated into a single oral argument testing the constitutionality of a tax credit scheme in which taxpayers choose to direct more contributions to religious organizations than nonreligious ones.
Another case, Skinner v. Switzer, asks whether under a federal civil rights statute a death row prisoner may obtain access to DNA testing that was not performed at trial. In last term’s District Attorney’s Office for the Third Judicial District v. Osborne, the Court rejected a constitutional right to potentially exonerating DNA evidence when the state has denied access to it, but left open the question of statutory relief at issue in Skinner.
And one more for the blooper reel: Justice Breyer jumped the gavel today, emerging from behind the curtain before the Marshal began her “oyez, oyez, oyez” chant. Sotomayor came out smiling wide and laughing hard while Roberts amusedly shook his head and Stevens smirked.
My write-up from this morning’s oral argument in Doe v. Reed is now up at the ABA Journal:
Today marked Justice John Paul Stevens’s final oral argument of his nearly thirty-five year career as an Associate Justice of the United States Supreme Court. Although Stevens has two more months of opinion announcements to get in a few more words as an active justice, his sole question during this morning’s argument in Doe v. Reed might as well have been his valedictory address to the Court and the country.
For nearly thirty minutes, Justice Stevens listened to the petitioners’ lawyer, Jim Bopp, argue that men and women who signed a petition to place an anti-gay rights referendum on the state ballot had a First Amendment right to privacy in their political associations that protected them against harassment from those with opposing political views. Accordingly, Bopp maintained, Washington State had no compelling justification to release, pursuant to the state’s Public Records Act, the signers’ name and information.
Then, as the white warning light turned on upon Bopp’s lectern to signal that his half-hour was almost up, Justice Stevens leaned forward and spoke into his microphone.
Read the rest here.
My argument write-up on Christian Legal Society v. Martinez is now up at ABA Journal:
From the justices’ questions at oral argument this morning in Christian Legal Society v. Martinez, it appeared as if the Supreme Court intended to begin its final sitting of the term by gifting Justice Stevens, the Court’s newly minted nonagenarian and retiree-designate, the opportunity to control how this morning’s case will be decided.
Read the rest here. Check back tomorrow for my Vox Populi column from last night/this morning’s CLS line.
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.
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.”
The New Yorker just released Jeffrey Toobin’s long profile on Justice Stevens. Other parts of the blogosphere are commenting on Stevens’s hedging over his seemingly imminent retirement, so here are a few other notable law-and-politics excerpts:
Stevens is an unlikely liberal icon. When he was appointed, he told me recently, he thought of himself as a Republican and always had—“ever since my father voted for Coolidge and Harding.” He declined to say whether he still does. For many decades, there have been moderate Republicans on the Court—John M. Harlan II and Potter Stewart (appointed by Eisenhower), Lewis F. Powell and Harry Blackmun (Nixon), David H. Souter (Bush I). Stevens is the last of them, and his departure will mark a cultural milestone. The moderate-Republican tradition that he came out of “goes way back,” Stevens said. “But things have changed.” [...]
Still, Stevens’s views suggest a sensibility more than a philosophy. Many great judicial legacies have a deep theoretical foundation—Oliver Wendell Holmes’s skeptical pragmatism, William J. Brennan’s aggressive liberalism, Scalia’s insistent originalism. Stevens’s lack of one raises questions about the durability of his influence on the Court.
But, more than anything, his career shows how the Court has become a partisan battlefield. In that spirit, Roberts last week denounced President Obama’s criticism of the Court in his State of the Union address, saying that the occasion had “degenerated to a political pep rally.” When Stevens leaves, the Supreme Court will be just another place where Democrats and Republicans fight. [...]
After his clerkship, Stevens returned to Chicago and took a job at one of the city’s first religiously integrated law firms. Abner Mikva clerked on the Supreme Court the year after Stevens, then returned to Chicago to start a career in public life. “Those were the days when there was such a thing as a moderate Republican, and that’s what he was,” Mikva said of Stevens. “He was a pretty conservative Republican on economic issues, but he was always a great progressive on civil rights and social rights.” [...]
Stevens, throughout his years on the Court, has drawn not just on history and precedent but on contemporary values and even on his own experience as a judge. According to Stevens, that approach has its origins in his brief stint as a lawyer on the staff of the House Judiciary Committee. “That was probably one of the most important parts of my education,” Stevens told me. He recalled an incident involving an antitrust law: “I remember explaining one of the tricky problems in the statute to one of the members of the committee. I got all through it, and he said, ‘Well, you know, let’s let the judges figure that one out.’ ”
What that told him was that “the legislature really works with the judges—contrary to the suggestion that the statute is a statute all by itself,” Stevens said. “There is an understanding that there are areas of interpretation that are going to have to be filled in later on, and the legislators rely on that. It’s part of the whole process. And you realize that they’re not totally separate branches of government—they’re working together.”