Tuesday, April 13, 2010

Justice Stevens

I promised you at the end of last week that I would have more to say about the retirement of Justice Stevens from the Supreme Court, so here goes.

I grew up watching the Supreme Court and wanting to be a judge. I went to law school wanting to be a judge. Or even Justice, because I was arrogant enough to think I might actually be smart enough (I know better now). My consciousness of the Court began as William O. Douglas was winding down. There was Thurgood Marshall, Earl Warren, and John Paul Stevens. He was one of the greats. Indeed, if you go back historically to Felix Frankfurter and Justice Brandeis, you can't help but feel that the smartest and best lawyers in the United States were on the Supreme Court - or at least that the people who were on the Supreme Court belonged there.

John Paul Stevens has had a special talent that goes far beyond book smarts; he was able to create coalitions, get that last fifth vote time after time, to forge unnatural but critical alliances. His political acumen was, then, every bit as important as his brilliance, especially in these later years, when he was the last remaining hero on the Court.

The Court has been demeaned tremendously by a string of mediocre appointments. It's not that Justices Scalia on the right and Justice Ginsberg on the left aren't really, really smart people. But they don't rise above the political fray and do the right thing; they are part of the politics of America. Instead of being the champion of the little guy -- the guy who had no voice in politics but could find a bastion of power and righteousness on the Supreme Court -- the Court has been co-opted by politics, from the coronation of George W Bush to allowing corporations to make unrestricted campaign distributions to chipping away seemingly inevitably at Roe v. Wade.

I used to read every decision the Court handed down. If nothing else, there was something to learn, there was a way of writing, oratory, unmitigated brilliance.

Justice Stevens is the last of those, the last intellectual, the last Justice who was not vetted for his politics. Indeed, as one of the last pre-Bork appointees -- the last who was not questioned about his personal politics, whose previous writings and activities were not torn apart to reveal a bias that may or may not really be there -- he may be the last to disappoint his nominator, the last liberal to be nominated by a Republican, albeit a moderate one.

Today's Court is just another court. Yes, it has the last word. Yes, it has the great potential to undo much of the good that has been done in the past fifty years for civil rights and women's rights -- indeed, it already has. But now it can do so without a conscience. There is nobody left who carries with him or her the history of Brown v. Board of Education, not to mention Roe v. Wade and its progeny. This is a shiny new Court that is likely to last for a good long time, leaving behind the struggles of the civil rights era to instead engage in struggles that may be equally important, but that rarely make us regard the Court as a Great One.

Today's Justices are smart. And Justice Ginsberg in particular is a hero of mine, although more for what she did before she was on the Court than for what she has done since. And really, they aren't all as smart as they need to be -- Clarence Thomas is exactly what we all feared he would be -- a mediocre follower. I don't see Justice Roberts as a great intellect. Justice Kennedy is so unpredictable as to make one wonder where his principles truly lie. Justices Breyer and Alito are intelligent, but they are not intellectual giants. Indeed, only Justice Scalia -- with whom I disagree about pretty much everything under the sun -- has that greatness of mind that the giants of the Court traditionally have had. But he, too, is young, and does not carry with him the history of the civil rights years. And so nobody on the Court will now remember -- not just intellectually, but in their gut -- the special place the Supreme Court has had in protecting the rights of those who could not protect themselves.

So it is with great sadness that I contemplate a court without Justice John Paul Stevens. Not only because he could form coalitions like nobody else can. Not only because he still wrote all of his own first drafts. Not only because I agree with him most of the time. But because with him goes a significant chapter in the history of America and the place of the Supreme Court.

Smarter people than I will write about this more articulately with lots of footnotes, dissecting his opinions, both majority and dissent. I say only that I am sad to see the conscience of the Court shaken by his leaving. Jennifer

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