New Yorker: “After Stevens”

After Stevens
-What will the Supreme Court be like without its liberal leader?
by Jeffrey Toobin
The New Yorker, March 22, 2010

Interesting profile on the most senior Judge on Supreme Court, soon to celebrate his ninetieth birthday, appointed by a Republican President (Gerald R. Ford) in 1975. Started as a “moderate Republican”, “He was a pretty conservative Republican on economic issues, but he was always a great progressive on civil rights and social rights.” But slowly turned liberal as the Court become more polarized. Now Stevens is the senior liberal leader on the bench.

It is interesting to learn how Stevens think the Court should do its ultimate job – interpret the constitution.

“Stevens believes that constitutional decision-making is conducted through the interpretation of a mix of various sources—a complex balancing act.” He added, “The glue holding it all together is judicial judgment.”

This is the core of Stevens’s disagreement with his great intellectual adversary on the court, Antonin Scalia. When it comes to interpreting statutes, Scalia believes that the Court should be guided by the words of the law “all by itself,” as Stevens put it. Steven G. Calabresi, a law professor at Northwestern and a co-founder of the conservative Federalist Society, told me, “What makes Stevens a moderate liberal is that he is fundamentally a legal realist, which means that when the text and history of the Constitution point in one direction, and good results and good consequences point in the other, he’ll usually go with what he sees as the good results.” He added, “Scalia sees the role of the judge as to read the text and apply it—period. Stevens thinks the law is more of a living thing, and he takes text and history and applies it in a way that he thinks serves the purposes of the framers, not necessarily their exact words.“

hmmm… Scalia’s view reminds me of the definition of Fundamentalism.

Stevens “is the only veteran of any kind on the Court”, and that allowed him to do something very important during Bush Administration.

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.”

“The Second World War was the defining experience of his life, and he is proud of being a veteran,” Cliff Sloan, a Washington lawyer who clerked for Stevens in the mid-eighties, said. “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.”

Lastly, when will he retire?

With the election of Barack Obama, the question of Stevens’s retirement has become more pressing. Even though Stevens was appointed by a Republican President, many assume that he would never willingly have turned his seat over to George W. Bush.

As for Obama, Stevens said, “I have a great admiration for him, and certainly think he’s capable of picking successfully, you know, doing a good job of filling vacancies.” He added, “You can say I will retire within the next three years. I’m sure of that.”

Read more at the New Yorker: After Stevens