Justice Stevens Lets Go — Better Hang On!

My Harvard Independent column for this week addresses the retirement of John Paul Stevens and the issue of picking his successor. Read the original here.
If they made posters of Supreme Court Justices, I’d put John Paul Stevens on my bedroom wall. The man is a progressive hero — first and foremost, for his longevity. In 2006, the liberal radio station Air America made a parody of “Hang On Sloopy” called “Hang On Stevens” — with lyrics like, “Stevens, I don’t care if you lose your mind, just wait until Bush leaves before you resign.” Past Sandra Day O’Connor and William Rehnquist and David Souter, Stevens hung on. And he probably could have kept going. He plays tennis twice a week, at 90 years old!
Still, his retirement is well-deserved. And thankfully, we don’t need Stevens to hang on anymore. We can only hope that President Obama finds someone as thoughtful and, yes, empathetic as Stevens to fill his shoes.
Appointed by Republican Gerald Ford in 1975, Stevens was not always an icon of the left. He has claimed that he didn’t change — that the Court changed around him. But it’s hard to take that seriously. Over the course of 34 years, Stevens has changed his mind on affirmative action, obscenity, and the death penalty, always moving in a more liberal direction.
Even his last major opinion, his dissent in the Citizens United campaign finance case, reflected a long-ago flip-flop. In January, Stevens caustically wrote, “While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.” In 1978, though, a Stevens-backed majority ruled that speech doesn’t lose the Constitution’s protection “simply because its source is a corporation” — the same sort of claim made by the Citizens United majority. It’s a shame Stevens wasn’t always as liberal as we’ll remember him, but he should feel no shame in admitting that he learned on the job, that he came around.
On some issues, of course, Stevens has been consistent. He has always protected a woman’s right to choose, upheld the separation of church and state, and defended the federal government’s power to regulate the economy. And in the last ten years, he has made his name, and shaped his legacy, as the intellectual leader and chief strategist of the Court’s increasingly beleaguered liberal wing.
What we might call Stevens’s heroic era began in 2000 with Bush v. Gore, an affront to democracy that Stevens unabashedly identified as such. In the early part of the Bush era, Stevens helped the liberals eke out major victories, or at least stave off major defeats, by assigning opinions to centrist justices like O’Connor and Anthony Kennedy and then rallying the liberal troops. This savviness gave us cases like Lawrence v. Texas, the major gay-rights victory; Grutter v. Bollinger, the last vindication of affirmative action; and Roper v. Simmons, which forbade the death penalty for crimes committed by minors.
This period will also be remembered for Stevens’s brave defense of the rule of law in a string of decisions rejecting Bush counter-terrorism policies. In 2004 he led a six-justice majority in holding that federal courts had jurisdiction over the prisoners at Guantánamo Bay, Cuba. The Bush Administration would no longer be able simply to ignore detainees’ claims of wrongful detention. In 2006, Stevens wrote the opinion overturning Bush’s military commissions because they had not been authorized by Congress and violated the Geneva Conventions. Finally, in 2008, this line of cases culminated in Boumediene v. Bush, which rejected even congressionally authorized military commissions as offensive to the right of habeas corpus. After September 11, few would have guessed that a majority of the Supreme Court would be courageous enough to stand up for the procedural rights of terror suspects. Stevens deserves a great deal of credit for that outcome.
Of course Stevens wrote a few decisions that shouldn’t sit well with liberals. I don’t want to suggest that he was the ideal Supreme Court Justice, as if such a thing exists. In 1989, Stevens refused to protect flag-burning under the First Amendment, hearkening back to “the soldiers who scaled the bluff at Omaha Beach” under the Stars and Stripes. (Stevens himself served in the Pacific Theater.) And in 2008 he upheld a photo-ID requirement that, like most anti-voter fraud laws, disproportionately hindered the poor and the elderly from exercising their right to vote.
But neither Supreme Court justices nor the nominees chosen to replace them should be held to a standard of ideological purity. With regards to nominees, we couldn’t do so if we tried. No prominent lawyer, judge, or politician is going to have a track record on every constitutional question that might arise in the next thirty years. And if they did, they’d never be confirmed. Our broken political process demands that nominees say nothing interesting or substantive; platitudes and evasions are the name of the game.
The next several weeks will, of course, be given over to fevered and uninformed speculation about whom Obama might nominate to replace Stevens. I’m not going to pick a favorite. Harvard parochialism doesn’t decide the issue for me — how could I choose between Elena Kagan, Elizabeth Warren, Cass Sunstein, and Martha Minow? If I wanted a smart, liberal, female law professor from Stanford, I’d have to flip a coin between Pam Karlan and Kathleen Sullivan. Better to just wait and let Obama pick for me.
Still, I can say this much: Obama is probably never going to have such a good chance to appoint a bona fide liberal to the Court. There’s no doubt the Democrats are going to lose at least a handful of senators in the fall, making any post-midterm nominations much dicier. And, as the New York Times reported last week, Republicans may be wary of being portrayed (accurately) as “knee-jerk obstructionists.” My bet is still that they’ll filibuster anyone Obama nominates; they cannot afford to deflate their base’s balloon before the midterms.
So the question becomes whether the nominee can be sold to the public and to the handful of reasonable GOP senators. Ultimately, “wise Latina” or not, Sonia Sotomayor was broadly popular from the get-go, and there just wasn’t enough there for honest Republicans to oppose. Let the Republicans complain; if Obama appoints the right person, things will fall into place. We need someone like Stevens, someone who we’ll be cheering to “hang on” thirty years from now.
Photo credit: Wikipedia