The End of an Era - Coming Soon

04/06/10

Speculation about Stevens’ plans has swirled for months, beginning when Stevens hired only one clerk for the coming term. Sitting justices are entitled to four clerks while retired justices retain one. There are three names reported to be on a hypothetical short list for the seat should Stevens step down.

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Stevens has sat on the Court since his appointment by President Ford in 1975, making him the senior associate justice. Although he was appointed by a Republican, Stevens is considered to be the leader of the liberal wing. His departure would not change the balance of the court, but it could have a sharp impact on the Court’s internal deliberations. Typically when meeting in private, the justices speak in order of seniority with the exception of the Chief Justice, who makes the first argument. As senior associate justice, Stevens spoke second allowing him to shape the liberal argument. When he retires, the first four to speak will be solid conservatives - Chief Justice Roberts followed by Justices Scalia, Kennedy and Thomas. The first liberal to get a word in will be Justice Ginsburg. In cases where Kennedy breaks to the left, it will be his argument that shapes the opinion.

Prior to attending law school, John Paul Stevens was an intelligence officer in the United States Navy and won the bronze star for his work on the cryptographic team that broke the Japanese codes and led to the shooting down of the plane carrying Admiral Yamamoto in 1943. When the war ended he went back to school and received his law degree from Northwestern University in 1947. In 1970, President Nixon appointed Steven to the appellate court, and following the retirement of Justice Douglas in 1975, he was elevated to the Supreme Court.

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Although he described himself as a judicial conservative as recently as 2007, he is widely recognized as the leader of the Court’s liberal wing. His views on certain key issues such as affirmative action and freedom of speech have shifted to the left over the years. Originally an opponent of affirmative action, he voted to uphold the affirmative action program at the University of Michigan Law School in Grutter v Bollinger. His early defense of government restriction on obscene speech gave way to a more libertarian view of the first amendment as seen in his concurring opinion in ACLU v Ashcroft. In 1976 he joined the majority in Gregg v Georgia, which reinstated the death penalty in the United States. Following that historic decision, he voted several times to limit its applicability, and in recent years has spoken out against capital punishment as being anachronistic and has raised doubts as to whether he still believes that the death penalty does not inherently violate the 8^th amendment. His scathing dissent in Bush v Gore was a prophetic prediction of the public’s lack of confidence in the judiciary as impartial arbitrators of the law.

It may yet be premature to declare this the end of an era. Should he stay on until the end of February, 2011, he will surpass Oliver Wendell Holmes as the oldest seated justice, and if he waits until April 2012 to retire, he will become the longest serving justice. He has in the past hinted that those are records he would like to break. Senate Democrats are anxious to see him wait another year to retire, fearing that a nomination fight so soon after the health care bill would be bruising.