Whoever President Obama nominates to succeed retiring Supreme Court Justice John Paul Stevens, you can predict what issues will dominate the debate: abortion, gay rights, racial/gender preferences, probably the constitutionality of health care, maybe a bit on the role of money in politics. Past rulings and paper trails will be scoured, and there will be no shortage of hyperbole. Weepy, malicious idiots will beat their chests for imperiled liberties; belabored analyses of election year judicial politics will abound.
An issue I doubt will get the attention it deserves is the proper extent of executive power, where Stevens did his greatest work in defense of American rights over the last, fraught decade. As the Times recounted in an appreciative editorial today, the 89 year-old Illinois native was our strongest judicial defender against the repeated power grabs of the Bush years:
He may be best remembered for his firm resistance to the post-Sept. 11, 2001, drive to roll back civil liberties in the name of fighting terrorism. He wrote the majority opinion in Rasul v. Bush in 2004, rejecting the Bush administration’s assertions of executive authority and made clear that federal courts had the authority to determine whether detainees at Guantánamo Bay, Cuba, were properly held. In 2006, he wrote for the majority in Hamdan v. Rumsfeld, which held that the military commissions established to try detainees held in Guantánamo violated the Geneva Conventions.
Yet Stevens' central role in recent American jurisprudence seems oddly underappreciated. He's been recognized more for his searing dissents in cases like Bush v. Gore in 2000, the 2007 school desegregation case, and the campaign finance ruling handed down this past January, than for leading the often successful resistance to executive overreach. (He also doesn't seem to be quite as reviled on the right as was David Souter, another appointee of a Republican president who retired last year--maybe because so few on the right today remember when Stevens was appointed by Gerald Ford, himself a not especially partisan president, in 1975.)
Sadly, it seems unlikely that Obama will appoint anyone with remotely the same fidelity to restraints on executive power. The reasons for this are twofold: one, the only rumored possibilities who hold such views are those who, because of their more leftward positions on hot-button social and economic issues, would spark the toughest political battles in an election year when Democrats are already anticipating heavy losses, and two, the administration itself, starting with the president, seems increasingly inclined toward a distinctly Bush-like view on executive power. The result is that a post-Stevens Supreme Court likely will rule in ways much more sympathetic to the expansive view. As Glenn Greenwald, writing about current Solicitor General and rumored front-runner Elena Kagan, puts it:
Over the past decade, the Court has issued numerous 5-4 decisions which placed at least some minimal constraints on executive power. Stevens was not merely in the majority in those cases, but was the intellectual leader justifying those limits. And he often went further in demanding due process and accountability for the Executive than even the "liberal" wing in general was willing to go -- as exemplified by his joining Justice Scalia's dissent in Hamdi, where the two unlikely allies both argued that the President could never detain U.S. citizens as "enemy combatants," but instead must charge them with a crime (e.g., treason) and obtain a conviction in order to imprison them.
Given Stevens' status as the leader of the Liberal wing, The Nation's Ari Melber said today: "With Justice Stevens retiring, it will take a nominee like Harold Koh just to maintain the Court's status quo."
The danger that we won't have such a status-quo-maintaining selection is [that]... for both political and substantive reasons, the Obama White House tends to avoid (with a few exceptions) any appointees to vital posts who are viewed as "liberal" or friendly to the Left; the temptation to avoid that kind of nominee heading into the 2010 midterm elections will be substantial ... [and] Kagan has already proven herself to be a steadfast Obama loyalist with her work as his Solicitor General, and the desire to have on the Court someone who has demonstrated fealty to Obama's broad claims of executive authority is likely to be great.
A number of retrospective pieces about Stevens published in recent months that anticipated his announcement Friday featured an elegiac, almost wistful tone owing to his status as the last World War II veteran on the high bench and the now-unimaginable unanimity (98-0) with which he was confirmed to the High Court by the Senate in 1975. While these are understandable and appropriate sentiments, what I worry about is that Stevens' departure from the Court removes the last strong voice in favoring of limiting government power on perhaps the most important questions of all, concerning how broadly the state can use force to pursue strategic goals. Admittedly, he wasn't the only vote in favor of restraint--but he was the instigator, the thinker, the persuader of his colleagues toward that view. It is very much in doubt that this president, or indeed anyone on the national stage these days, appreciates how much might be lost if he is not suitably replaced.