The most liberal member of the Supreme Court, Justice John Paul Stevens, is 89 years old. We owe him our eternal gratitude, for his jurisprudence, his bowtie, and especially for keeping himself alive through sheer force of will for the entirety the Bush years, thus at least partially maintaining the balance of the Supreme Court. (Although I still blame Sandra Day O’Connor for selfishly allowing her husband to develop Alzheimer’s.)
Today, the Times reports that Justice Stevens has only hired one clerk, rather than the usual four, for the upcoming term — a sign that, with a progressive in the White House, he is perhaps considering retirement. Although we can’t find a nearly 90-year-old public servant his dreams of leisure surprising, we can, and do, find this news somewhat worrying.
Like the just-retired book hoarder David Souter, Stevens was a lower-court judge with a conservative reputation, appointed by a Republican president, who moved inexorably left during his time on the court, for the very good reason that the Constitution is actually a pretty liberal document unless you are a movement conservative like Tony Scalia or Clarence Thomas or John Roberts or Sam Alito (bastards, all of them, always, and forever). When Jeffrey Rosen profiled Stevens in 2007, he wrote:
In criminal-law and death-penalty cases, Stevens has voted against the government and in favor of the individual more frequently than any other sitting justice… He is the court’s most outspoken defender of the need for judicial oversight of executive power. And in recent years, he has written majority opinions in two of the most important cases ruling against the Bush administration’s treatment of suspected enemy combatants in the war on terror…
He also, Rosen discusses, played court politics adeptly in consolidating the liberal camp, and authoring or assigning fierce dissent. And he told Rosen:
“Including myself, every judge who’s been appointed to the court since Lewis Powell [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.”
This is objectively true, and unlikely to change. Partly because Stevens is so progressive — on issues, as well as the ones above, having to do with abortion and especially amendments One and Four — and partly because so little that we saw during the Sotomayor process indicates that the president has the inclination to appoint a judicial liberal, or the political will to attempt to reframe the reductive public narrative about scrupulous “originalist” judges versus “activist” progressive judges. Sotomayor may prove a little more or a little less liberal than Souter; it’s unlikely that anyone but, say, Martha Nussbaum (which: yes, please!) would make a roughly like-for-like replacement for Stevens.
And given the ages and health of the other Justices, it’s very unlikely that Obama will have the opportunity to move the Court significantly to the left during his time in office. The Supreme Court will almost certainly be more conservative at the end of the Obama years than it was at the start.