Justice John Paul Stevens is the oldest member of the Supreme Court, so it came as no shock when he announced his retirement recently. Appointed by Gerald Ford, Stevens had a conservative track record before arriving on the Supreme Court. He voted to reinstate capital punishment and against affirmative action.
However, once he was appointed, and in more recent years, he has been voting in favor of abortion rights, gay rights and free speech. For this he has been frequently dubbed “the most liberal Supreme Court justice,” but a careful reading of his judicial philosophy will find that he is a true libertarian, leaning toward personal freedoms and limiting the authority of the police state.
His opinions frequently cited World War II, American values and Shakespeare. Law clerks tell stories of the numerous collections of Shakespeare’s works that litter his office and personal library. To wrap up the hagiography, he was by far one of my favorite Supreme Court justices. Yes, see up above where it says, “From a Political Junkie?” That means I get to have favorite Supreme Court justices.
With Stevens retiring, President Obama has a chance to move the court in a firm legal direction. One of President Bush’s most lasting effects was appointing Chief Justice Roberts and Associate Justice Alito. These two joined Justices Scalia and Thomas to form a solid, near impenetrable conservative bloc that has voted to expand corporate power and the police state several times in the last couple of years. The swing vote became Justice Kennedy, who usually sides with the conservatives on issues of corporate power and faith.
When the confirmation process starts, we will hear cries of “Activist judges!” This is a red herring and painful every time I hear it. It seems only to apply when more liberal judges make a ruling conservatives do not like. When the Roberts court overturned fifty-plus years of election law with the Citizens United decision, we did not hear cries of “legislating from the bench.” Yet if they offered up a ruling preserving a woman’s right to seek a perfectly legal medical procedure, we would hear, “Judicial activism!”
Let me let you in on a secret: No judge is without political leanings; no case is above the consideration of our values and ideology. Does that mean there is no rule of law and all issues before the court are just political votes, like in Congress? No, not at all. What it means is that the Supreme Court interprets the law of the land. The very nature of interpretation means they are using their values and viewpoints to see how the law should be applied. So when it comes to considerations about who to appoint as our next Supreme Court justice, ideology is extremely important.
So, whom will he pick? His last pick, Justice Sotomayor was reasonably liberal but more a legal nitpicker, often using obscure clauses and deconstructing arguments down to the word. She is very sharp, and very smart, but not really a true progressive. There is much talk about his solicitor general and about other judges. There is talk about race, and gender, and background. There are questions about whether the appointee will be Jewish, Catholic, Protestant. But very rarely do the discussions come down to judicial outlook and values. So here is my recommendation for the president.
We need an openly liberal justice. Someone who sees government as a tool to help the people, not to control the people. We need someone who sees government as people coming together to solve problems bigger than themselves, not as a collection of corporations and employees. We need someone who looks forward to the future and is not hindered by religious dogma. We need someone who values individual liberty and sees the damage caused by unfettered corporate influence. We need someone who sticks up for the little guy and those who do not have a voice at the table. In short, we need a flaming liberal.
With the conservative bloc firmly entrenched, we need someone who will keep the balance of the court where it is. Scalia, Thomas and Roberts are all relatively young and healthy. They aren’t going anywhere anytime soon. We need someone who will push for our values for many years to come. This decision will have echoes far beyond your term, Mister President; I am hoping you pick someone based not on the ease of their confirmation but on the strength of their convictions.