This will be John Paul Stevens's last session with the Supreme Court. He's just short of 90 and has been an associate Justice since Ford nominated him in 1975. Right now he's the only Protestant in the Court, and he's the second longest serving and second older Supreme Court Justice in US history.
The replacement speculation will be raging all summer, but first I ought to say how glad I am that he was able to work through the Bush years so that GWB wouldn't have replaced him with another conservative ideologue who's 40-something. That takes stamina.
Stevens was on the right side of sodomy laws cases in both Bowers v. Hardwick in 1986 and Lawrence v. Texas in 2003, prompting Justice Kennedy to write for the majority in Lawrence:
Justice Stevens' analysis, in our view, should have been controlling in Bowers and should control here.
The Court may be excused by some for getting it wrong in 1986 considering homophobia was stronger then, but Stevens and saw the issue as about private, consensual adult behavior instead of the state "approving" of homosexuality right from the beginning. He was also in the majority in gay people's other big Supreme Court win, Romer v. Evans.
Expect the punditocracy is going to refer to him as a "liberal" over these next few months (the Washington Post goes further and says he's "on the left"... only in the country where Obama's a socialist), that's not what he thought of himself. He was nominated by a Republican and considered his politics conservative:
Stevens, however, is an improbable liberal icon. "I don't think of myself as a liberal at all," he told me during a recent interview in his chambers, laughing and shaking his head. "I think as part of my general politics, I'm pretty darn conservative." Stevens said that his views haven't changed since 1975, when as a moderate Republican he was appointed by President Gerald Ford to the Supreme Court. Stevens's judicial hero is Potter Stewart, the Republican centrist, whom Stevens has said he admires more than all of the other justices with whom he has served. He considers himself a "judicial conservative," he said, and only appears liberal today because he has been surrounded by increasingly conservative colleagues. "Including myself," he said, "every judge who's been appointed to the court since Lewis Powell" -- nominated by Richard Nixon in 1971 -- "has been more conservative than his or her predecessor. Except maybe Justice Ginsburg. That's bound to have an effect on the court."[...]
It may seem surprising that such a passionate leader of the court's liberal wing bristles when he is called a liberal. But the fact that Stevens sees himself as a conservatively oriented centrist makes perfect sense given what judicial liberalism has become. There was a time, years ago in the Warren Court era, when liberal justices like Stevens's predecessor William O. Douglas saw themselves as on a mission to recreate American society along boldly egalitarian lines by discovering newly minted constitutional rights. But for better or worse, this ambitious conception of judicial liberalism has been replaced, like much of political liberalism in America, by a more modest, conciliatory and technocratic sensibility. Even the most liberal justices today have little appetite for the old approach.
Judicial liberalism, in other words, has largely become a conservative project: an effort to preserve the legal status quo in the face of efforts by a younger generation of conservatives to uproot the precedents of the past 40 years. Stevens, who wrote or supported many of those precedents, understandably objects when he feels they are distorted or mischaracterized by justices who were in college when he was appointed to the court. At the same time, merely conserving the achievements of the past is less than what many liberals today ultimately hope for. Can Stevens provide a model for a new vision of legal liberalism in the 21st century?
The speculation is going to turn to replacements now, and maybe getting an actual liberal (or maybe even someone on the left) on the Supreme Court would be a good idea (I'm not holding my breath with Obama). The Washington Post has more on Stevens's replacements:
Aides and Democrats close to the process named three people as likely front-runners for the job: Solicitor General Elena Kagan, whom Obama appointed as the first woman to hold the post, and two appellate court judges, Diane P. Wood of Chicago and Merrick B. Garland of Washington.
Kagan and Wood were interviewed by Obama last spring before he nominated Sonia Sotomayor to the court.
Kagan, 49, was confirmed by the Senate as solicitor general in March 2009. She worked as associate White House counsel under President Bill Clinton, was a law professor at the University of Chicago and served as dean of Harvard Law School.
Wood, 59, is a judge on the U.S. Court of Appeals for the Seventh Circuit. Garland, 57, sits on the U.S. Court of Appeals for the District of Columbia Circuit.
This'll be something to discuss this summer. I expect to be fully annoyed when Republicans find some odd statement from the nominee's past that isn't even that bad in context and beat on it over and over again.