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April 9, 2010

Professor Howard on Stevens Retirement

Howard
A.E. Dick Howard
 
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An expert in the fields of constitutional law, comparative constitutionalism and the Supreme Court, Professor A. E. Dick Howard was a law clerk to Justice Hugo L. Black and has studied the court’s ideological move to the right.

After the announcement of Justice John Paul Stevens' retirement Friday, Howard reflected on Stevens legacy and role on the court, and the implications of his retirement.

John Paul Stevens came to the Supreme Court as a moderate Republican. During his early years on the Court, he was little noticed on a tribunal that still had the likes of William Brennan and Thurgood Marshall defending the legacy of the Warren Court. Moreover, Stevens seemed given to episodic, even idiosyncratic, opinions. Commentators often called him the Court's "wild card."

All that began to change as the Court shifted to the right during the era of the Rehnquist Court. In 1994, Justice Blackmun retired, and Stevens became the senior associate justice. When the Chief Justice is in the minority in a case, the senior associate justice assigns the author of the majority opinion. Stevens seemed to wield that authority to good effect, sometime writing the opinion himself, sometimes assigning it to a colleague such as O'Connor in the University of Michigan affirmative action cases or Kennedy in the decision invalidating Texas' anti-sodomy law.

In the era of Chief Justice Roberts, the Court seems even closer to a conservative working majority, after the departure of Justice O'Connor. In recent years, Stevens seems in some ways to be the Court's conscience. When the Court weighed the legality of execution by lethal injection, Stevens said that he had relied on his "own experience" in deciding that the death penalty could not be defended, even though he felt bound by the Court's precedents in such cases. Stevens' sense of fairness and the rule of law was amply displayed in detention cases where he rebuffed major aspects of the Bush Administration's war on terrorism. In marked contrast to Scalia's jurisprudence of originalism, Stevens seems to care about the consequences of Supreme Court opinions, a quality recalling opinions of the Warren era rather than those of the current Court.

Whoever replaces Stevens on the Court, the voting pattern will not likely be affected.  Assuming that the new justice is of at least moderately liberal persuasion, outwardly things are not apt to change very much. But what the more liberal wing of the Court will lose is a justice with a seasoned sense of strategy and a distinctive voice. This is a justice, after all, who takes pride in writing the first draft of his opinions. He is a justice who, when eight other justices joined the "cert pool" (in which a clerk writes memoranda regarding petitions for certiorari for the other justices), had his own clerks review all the petitions. He reasons like a legal realist, untethered by ideology. 

When President Obama puts forth a nominee, we can expect hearings to take place in an atmosphere in heightened partisanship. At least since the Bork hearings in 1987, confirmation hearings for Supreme Court nominees have taken on a ritualistic quality, in which senators ask charged questions and nominees assume a minimalist posture. All around explode the shells fired by interest groups, politicians, and commentators. In an age of Tea Parties, the debate over health care, anticipation of midterm elections, and positioning for the next presidential election, we can hardly expect public debate over filling a vacancy on the Supreme Court to take place on the level of dispassionate concern for the common good. Whether the confirmation process will enlighten the country about either the nominee or the Court we must wait and see.

Media Advisory: Law Professors Available to Talk About U.S. Supreme Court Vacancy