The end of an era

By Anthony Matthew Durkin

A Confederacy of Dunces

Published: Tuesday, April 13, 2010
Updated: Tuesday, April 13, 2010

I was talking with my Dad this past weekend about an op-ed piece in the Sunday New York Times entitled “One Man, Two Courts,” by Linda Greenhouse. My Dad said,“If you were to tell me 34 years ago that when John Paul Stevens retired from the Supreme Court, he would be hailed as the leader of liberal wing, I would have thought you were crazy.” I don’t believe his is an isolated opinion. As Greenhouse had explained, Stevens, a moderate Republican from Chicago, was nominated in 1970 by Richard Nixon to serve on the U.S. Court of Appeals for the Seventh Circuit. He was appointed to the Supreme Court in 1975 by Republican President Gerald Ford. When asked in an interview in 2007 if he considers himself to be liberal or conservative, Stevens stated “I don’t think of myself as a liberal at all. I think as part of my general politics, I’m pretty darn conservative.” How on earth then did a twice Republican-nominated judge become the voice of the liberal wing in the Supreme Court? The simple answer is that the meaning of being conservative has shifted, and as a result, the Court, not unlike this country, has become increasingly more conservative.

Stevens was the first justice nominated to the Supreme Court after the Court’s 1973 landmark decision in the case Roe v. Wade, in which the Court ruled in favor of protecting a woman’s right to an abortion. Interestingly, during Stevens’ Senate confirmation hearing in 1975, he was asked zero questions regarding the issue of abortion. Within 19 days, Stevens was confirmed by a Democrat-controlled Senate. The vote was 98-0. In retrospect, it is easy to understand why the issue of abortion was never even discussed. It was not until 1980 that the Republican Party platform called for the nomination of judges who opposed abortions. In fact, a Gallup poll the summer before the Court announced its decision in 1973 showed that more Republicans than Democrats were in favor of leaving the decision up to the woman and her doctor.

Stevens himself has been a proponent of the theory that, during his tenure, the Court has become increasingly more conservative, as ideology has played an increasing role in the nomination and confirmation process. In that same 2007 interview, Stevens remarked that “every judge who’s been appointed to the court since Lewis Powell (nominated by Richard Nixon 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.”

But this still does not fully explain how Stevens has emerged as the leader of the liberal wing. Stevens provided a glimpse into that answer when he stated in a speech to the Fordham Law School in 2005 that “learning on the job is essential to the process of judging.” What did he mean? Stevens’ stance on the death penalty provides some understanding. In 1976, in the case of Gregg v. Georgia, Stevens voted in favor of the reinstatement of a state’s right to execute criminals, holding that the use of the death penalty could be both rational and fair. But by 2008, in an opinion concurring with the majority decision in Baze v. Rees that found the state of Kentucky’s method by lethal injection lawful, Stevens separately wrote that the time had come to reconsider “the justification for the death penalty itself.” This thoughtful reconsideration and re-evaluation of issues over time has happened in other areas, including affirmative action which he was originally opposed to in 1978.

Stevens will be particularly remembered as the liberal voice on the Court during the last decade, especially for his majority opinions over detainee’s rights at Guantanamo Bay. In 2004 in Rasul v. Bush, he wrote for the majority holding that the United States Courts have jurisdiction over prisoners being held there, and while they may not be citizens, still have a right to habeas corpus. In 2006 in Hamden v. Rumsfeld, again writing for the majority, he attacked the Executive branch stating that “the Executive is bound to comply with the Rule of Law that prevails in this jurisdiction” after the Court found that the military commission set up there was unauthorized by federal statute and violated international law. And arguably his most famous assessment of our democracy came in his dissent in the campaign finance case decided this past January, Citizens United v. F.E.C., in which he stated “while American democracy is imperfect, few outside the majority of this court would have thought its flaws included a dearth of corporate money in politics.”

As President Obama readies to appoint someone to fill Stevens’ chair on the Supreme Court, the question is, what should be the criteria? Further, what should be the criteria for the confirmation process? Should ideology, which was not significant in 1975 when Stevens was appointed, be important today? Should, as some Republican commentators have urged, ideology be the litmus test?

The point to make is this: Gone are the days of a justice whose decisions were not defined by what he or she believes ideologically. Gone are the days of consensus-building in the Court. Gone are the days when a justice can essentially “learn on the job” and evolve ideology through experience. Whomever Obama selects, he or she should epitomize the same characteristics that Stevens portrayed, and it should be someone who most certainly continues to shift the Court further toward the center after it moved disturbingly further right under the Bush administration. Stevens warned of the path the Court was heading down in 2000 following its landmark decision in Bush v. Gore. After the court handed George Bush the electoral votes in Florida needed to win the election, Stevens echoed a sentiment shared by many today.

“Although we may never know with complete certainty the identity of the winner of this year’s presidential election, the identity of the loser is perfectly clear. It is the nation’s confidence in the judge as an impartial guardian of the rule of law.”

Anthony Matthew Durkin is a senior living off campus and double majoring in political science and history. He can be reached at adurkin@nd.edu

The views expressed in this column are those of the author and not necessarily those of The Observer.