Private: On Justice Stevens and a Changing High Court

The New Yorker's Jeffrey Toobin explores the tenure Justice John Paul Stevens, the Supreme Court's "fourth-longest serving" justice in an article that contemplates a high court "without its liberal leader."

In an interview with Toobin, Justice Stevens reflects on his time on the bench, saying there are "dozens" of cases he is unhappy with. The justice signaled out Citizens United v. FEC, which overturned court precedent and found that corporations have similar First Amendment rights as individuals, at least in the area of campaign financing, District of Columvia v. Heller, which found that the Second Amendment provides a personal right to possess firearms, and Bush v. Gore, which decided the 2000 presidential election.

Stevens said the Court has lurched rightward since he joined it in 1975. "You don't have to ask me that," Stevens responded to Toobin's question on the tilt of the high court. "Look at Citizens United. If it is not necessary to decide a case on a very broad constitutional ground, when other grounds are available, then doesn't that create the likelihood that people will think you're not following the rules?"

Toobin maintains that the peak of Stevens' work centers on his decisions involving the treatment of military detainees:

In the 2004 case of Rasul v. Bush, among the first major cases to arise from Bush's war on terror-and the first time that a President ever lost a major civil-liberties case in the Supreme Court during wartime-Stevens wrote for a six-to-three majority that the detainees did have the right to challenge their incarceration in American courts. In his opinion, which was written in an especially understated tone, in notable contrast to the bombastic rhetoric that accompanied the war on terror, he cited Rutledge's dissent in the Ahrens case-which he himself had helped write, fifty-six years earlier. One of Stevens's law clerks, Joseph T. Thai, later wrote an article in the Virginia Law Review entitled "The Law Clerk Who Wrote Rasul v. Bush," which concluded that "Stevens's work on Ahrens as a law clerk exerted a remarkable influence over the Rasul decision."

Two years after Rasul, Stevens wrote the opinion for the Court in Hamdan v. Rumsfeld, in which a five-to-three majority rejected the Bush Administration's plans for military tribunals at Guantánamo, on the ground that they would violate both the Uniform Code of Military Justice and the Geneva conventions. (Roberts did not participate in that case, because as a judge on the D.C. Circuit he had joined the opinion that Stevens overruled.)
Stevens's repudiation of the Bush Administration's legal approach to the war on terror was total. First, in Rasul, he opened the door to American courtrooms for the detainees; then, in Hamdan, he rejected the procedures that the Bush Administration had drawn up in response to Rasul; finally, in 2008, in Boumediene v. Bush, Stevens assigned Kennedy to write the opinion vetoing the system that Congress had devised in response to Hamdan.

After the attacks of September 11, 2001, the Bush Administration conducted its war on terror with almost no formal resistance from other parts of the government, until Stevens's opinions. He was among the first voices, and certainly the most important one, to announce, as he wrote in Hamdan, that "the Executive is bound to comply with the Rule of Law."

Cliff Sloan, partner Skadden, Arps, Slate Meagher & Flom LLP, and a member of the ACS Board of Directors, told Toobin, "The Second World War was the defining experience of his life, and he is proud of being a veteran. No one can challenge his patriotism, and that's why he was the right guy to take on the Bush Administration's position at that time and in that way."
Toobin's article also touches upon speculation revolving around the retirement of Stevens may retire. Stevens said, "You can say I will retire within the next three years. I'm sure of that."

According to UPI, a "probable successor" to a potential Justice Stevens' retirement is U.S. Solicitor General Elena Kagan. UPI looks to commentary from SCOTUSblog founder Tom Goldstein. In a February post on SCOTUSblog, Goldstein wrote of Kagan:

Super-smart and genuinely knowledgeable. Solicitor general. Formerly the tremendously successful dean of Harvard Law School. Personally has the greatest respect of the president, in part from their shared ties to both Chicago and Harvard. Deep relationships in the administration, particularly among those who served under Clinton. Well-known conservatives lined up around the block to support her in emphatic terms.

 

[image via Wikimedia Commons]

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