April 23, 2010


Living Without Stevens: How will the Supreme Court behave when he’s gone? (Tom Goldstein, April 21, 2010, New Republic)

There nonetheless are a couple of issues on which the Court’s majority followed that just-cited line-up—the left plus Justice Kennedy—but for which a new appointment could realistically change the result because the issues do not necessarily track the traditional liberal-versus- conservative breakdown: executive power and preemption.

Thus, the Court has been narrowly divided, with the left prevailing, in cases relating to the rights of military detainees to have access to the federal courts, including particularly on federal habeas corpus. A nominee who had a substantially more robust view of presidential powers, or even greater confidence in this Administration’s approach to detainee questions, could shift the course of those rulings. In addition, other important presidential-power questions are headed towards the Supreme Court, including with respect to the NSA wiretapping program.

On preemption, Justice Stevens recently had significant success in securing a majority for two important opinions limiting the extent to which federal law trumps state law. His successor could take a broader view of the extent to which federal law controls, which would allow fewer state-law tort suits to proceed.

The next body of cases involves less traditional alignments among the Justices—generally, the Court’s left (Stevens, Ginsburg, and Souter) and right (Scalia and Thomas) wings joining together to form a five-Justice majority. This grouping has produced dramatic shifts in the Court’s Sixth Amendment jurisprudence relating to the jury trial right (which has significant effects on how prison sentences are determined) and a defendant’s right to confront witnesses against him. The recent departures of two members of that majority—first Souter and now Stevens—create a significant prospect that the tide of those cases will now be slowed and perhaps reversed.

It is also possible to identify areas of the law in which Justice Stevens’ departure may have an effect, even though he was not traditionally a part of a majority on the merits of a particular legal issue. Most prominent among these is campaign finance. Justices Stevens and Souter were the two strongest voices on the left resisting the trend towards the more aggressive application of the First Amendment to invalidate campaign finance laws, and the combined absence of their voices may speed the trend towards more decisions like Citizens United. Another example is the death penalty, where Justice Stevens (who late in his tenure concluded that the death penalty is unconstitutional) was relatively willing to provide a vote in favor of stays of execution. His replacement might be less willing to do so.

Posted by Orrin Judd at April 23, 2010 5:49 AM
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