Who Will Get the Stevens Seat?

After a 35-year run, John Paul Stevens gives Obama a second chance to reshape the court

  • Lynn Johnson / National Geographic / Corbis

    Supreme Court Justice John Paul Stevens in his office

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    On the list of 10 or so candidates floated by the White House in recent days, no one better fits that bill than Solicitor General Elena Kagan, a former Clinton Administration official and the first female dean of Harvard Law School. Like Roberts, Kagan came of age in the White House counsel's office, a busy intersection of politics and law. Like Roberts, she made a practice of avoiding controversial statements and winning admirers from across the political divide. And also like Roberts, she persuaded her supporters that she shared their political views without ever being caught saying so. All of which makes her, according to court watcher Tom Goldstein, founder of the influential SCOTUSblog, "the prohibitive favorite."

    No one would have predicted back in the days of disco and three-piece polyester suits that Stevens would become a darling of the American left. Born into a wealthy Chicago family in 1920, he was a distinguished corporate antitrust lawyer before Republican President Richard Nixon appointed him to the Seventh Circuit Court of Appeals in 1970. Elevated to the Supreme Court five years later, Stevens fit easily into the center of the Republican-dominated court. He wrote the famous opinion banning the broadcast of comedian George Carlin's seven dirty words. He opposed affirmative action and joined a group of swing Justices to reinstate the death penalty. Like several of his colleagues in that period, Stevens had no grand constitutional theory to guide his decisionmaking; instead, he drilled deeply into the facts of each file and tried to go where the case law took him. Critics called him quirky. Admirers have praised his work as a classic example of conservative common-law judging. His 1984 opinion in Chevron v. NRDC , balancing the legislative intent of Congress with the rulemaking authority of the executive-branch agencies, has been called the most cited Supreme Court decision in history.

    In recent interviews, Stevens has insisted that he never changed; the court did. He's halfway correct. The court did change. It now decides fewer cases, in more heated terms. The center of gravity hasn't moved much (back then it was conservative Lewis Powell who was the swing vote; now it's conservative Anthony Kennedy), but in the 1970s the court was led from the center, while today the loudest voices are on the extremes.

    Stevens did change, though. In 2008 he suggested that the death penalty was unconstitutional, joining Blackmun and Powell in repudiating the legal contraption they were instrumental in creating. He changed tack on affirmative action and resisted limits on Internet content that might have made even George Carlin blush.

    History may conclude that Stevens did his most important work in recent years, as he led the court in limiting a President's power to detain suspected terrorists indefinitely, with scant access to judicial review. In those opinions, he connected with what is arguably the essence of the Constitution: its checks and balances on excessive concentrations of power.

    Some on the left are calling on Obama to make this issue — the rights of detainees and the limits of presidential authority — a sort of litmus test for Stevens' successor. The wrong pick, they fear, could produce a remarkable result: a Democrat replaces a Republican on the court, yet the philosophical center tilts toward the conservatives. But there is something not quite right about trying to maintain a legacy for John Paul Stevens by installing a new litmus test. If his long career stands for any principle, it is that an independent judiciary starts with truly independent judges.

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