The retirement of Justice John Paul Stevens will fundamentally change the Supreme Court, and not just because he served on it for more than 30 years. Appointed as a conservative by Republican President Gerald Ford, Stevens came to be considered one of the Court’s most liberal members as his career progressed. This was especially true in the 1990s and 2000s, as the Court became increasingly conservative.
But the Supreme Court isn’t just losing a member of its liberal bloc. Stevens is an excellent opinion writer, one of the best in the court’s history. In close cases, he had a talent for framing his legal arguments in such a way that more moderate “swing-vote” justices like Sandra Day O’Connor or Anthony Kennedy could be persuaded against joining a conservative opinion.
Even if he couldn’t persuade them to vote his way, his dissents laid the groundwork for a more moderate precedent and sometimes for the possibility to overturn the decision in the future.
In this way, Stevens’ influence can be felt in all corners of the law. The loss of such a strategist is a major blow to liberals, but it may not be appreciated for some time.
“Presidents come and go,” William Howard Taft once said, “but the Supreme Court goes on forever.” No matter who President Barack Obama appoints as Stevens’ successor, whether a moderate or an unabashed progressive, the conservatives have become more powerful.
Stevens’ retirement marks the end of a long and contentious era in American political history. In the future, the Supreme Court will see no decline in its importance. The new Court may have to rule on the constitutionality of health care, as well as on issues that seemingly never go away, such as abortion, gay marriage and separation of church and state.
In so many close, ideological decisions, the outcome is usually decided by moderates like Justice Kennedy.
Obama’s reprimand of the Supreme Court during the State of the Union address for the Court’s decision to treat corporations as “people” shows that the battle over American law is only going to become more divisive. That decision was decided, of course, by Kennedy when he voted with the conservatives.
The next decade will see much of the execution of the law in schools, churches, hospitals, statehouses and company boardrooms decided almost entirely by Kennedy. Instead of analyzing the minute ideological details of all the replacement candidates, it may be more important to figure out how they’re going to talk to him.
This will make the process much more difficult, and probably will require more time. Republicans in Congress, though, can afford to rest on their laurels and not risk a drawn-out fight. Their position of influence is strong and secure in the Supreme Court, at least for the time being.
