Farewell, Justice John Paul Stevens

A great figure prepares to exit the stage, Justice Stevens. For 35 years, he has been a fixture in the Supreme Court, a man already on the court when the youngest justices were still in law school. Appointed as a consensus nominee by a moderate Republican (or what we used to call just a Republican) his tenure shows the rightward drift of American politics. He has moved somewhat to the left on some social issues, while the Reagan Revolution and the end of the Cold War pushed new right-wing activism. Stevens was right-of-center when he was put on the court. The suggestion that he drifted left is overstated. He still thinks burning the flag should be illegal. Stevens was never really a liberal.

His exit will have an interesting impact on the court. When the chief justice is in the majority, he assigns the opinion writing. When he is not, custom dictates that the senior justice in the majority does the assignment. That person will be Scalia. Of course, Scalia and the Chief are unlikely to be on different sides of too many issues, certainly not the big ticket ones. So this means that if there is to be a non-conservative majority, it will be led by Kennedy, the next-most-senior justice. He will be able, by joining the 4 court liberals, to choose who writes the opinion. In short, this move makes Kennedy an even more powerful central swing vote than he is now. After all, if Roberts wants Kennedy to join him on 5-4 splits, he may have to let Kennedy write the opinion, since he WILL get to write the opinion if he joins the four liberals (all this assumes that Obama's nominee will be cast as one of the liberals).

Unfortunately, there is a lot of negative press about Kennedy, some of it deserved. The worst rap on him is that he is self-aggrandizing and self-important, something this new stature will not discourage.

Stevens also was the last justice to review cert petitions independently. The other eight participate in a "pool" where only a single law clerk (or two) will write and circulate the memo on cert petitions for all to review. Institutionally, this is probably a poor idea, since it cuts down on the best part of having 9 justices: nine viewpoints.

Everyone expects Ginsburg to follow suit soon and retire, leaving Breyer as the most senior "liberal" on the court, with three Obama appointees in tow. Will Kennedy retire? Scalia?

Why is the Supreme Court so important now? Why do we allow ourselves to be governed by nine unelected judges-for-life? I think you can look at the Senate filibuster as a substantial cause. If the political branches of government are stopped up, like a clogged sink, the water spills elsewhere. The kitchen doesn't become a water tank, though, the water flows out through some unexpected route. It could be worse. As Jefferson wrote in 1776, "He has dissolved representative houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.
He has refused for a long time, after such dissolutions, to cause others to be elected; whereby the legislative powers, incapable of annihilation, have returned to the people at large for their exercise; the state remaining in the meantime exposed to all the dangers of invasion from without, and convulsions within."

That phrase is what haunts me, "the legislative powers, incapable of annihilation." It means that there is no such thing as anarchy, and no such thing as permanent stalemate in government. Government happens one way or another. Litigation is not as good as legislation by a longshot, but it beats revolution. So farewell, Justice Stevens. I wish your passing from the scene were less momentous.