How High Court Could Change If Stevens Retires
In the March 22 issue of The New Yorker, legal correspondent Jeffrey Toobin profiles Justice John Paul Stevens, the Supreme Court's longest-serving member.
Stevens, who will celebrate his 90th birthday on April 20, was appointed to the court in 1975 by President Gerald Ford and, as Toobin writes, "is a generation or two away from most of his colleagues; when [Justice John] Roberts served as a law clerk to William H. Rehnquist, Stevens had already been a Justice for five years." Speculation is growing that Stevens will step down from the court at the end of the current term, in June 2010.
"Last fall he had announced that he had only hired one law clerk, which suggested to a lot of people that instead of hiring the customary four, he was really moving towards retirement," Toobin tells Fresh Air host Terry Gross. "So I asked him, 'Are you going to retire at the end of this term?' And he said he hadn't completely made up his mind. He said his law clerks had agreed to serve longer, if he wanted them to, but it was certainly my impression that he is leaning towards retiring very soon."
Among the major decisions pending from the Supreme Court is McDonald v. Chicago, a case examining the legality of Chicago's handgun ban.
The high court has already ruled recently on gun control: In 2008, justices struck down Washington, D.C.'s handgun ban as a violation of the Second Amendment right to bear arms. But that ruling applied only to the nation's capital. The case now before the Supreme Court tests whether the limits on gun bans apply to state and local governments.
"The issue in McDonald v. Chicago that the court is currently deciding is, 'Does a state have to honor the Second Amendment in the same way [that D.C. does]?' " says Toobin. "My guess is the court will incorporate the Second Amendment and will ban gun control in the states, and we are in for decades of litigation trying to figure out what gun control is legal and what gun control isn't."
Toobin is currently a staff writer at The New Yorker and a senior legal analyst for CNN. He is also the author of The Nine: Inside the Secret World of the Supreme Court.
On Stevens' retirement plans
[The Obama administration has] very much suspected that a vacancy [on the Supreme Court] is imminent and I think they do have a candidate in mind and frankly I think I know who it is. I think it's going to be Elena Kagan, the current solicitor general and the former dean of Harvard Law School.
"He didn't say that [he wanted to retire during the Obama administration] directly, but he definitely spoke of his admiration for Obama; they are fellow Chicagoans, something Justice Stevens takes very seriously. And if you look at Justice Stevens' place in the court and how he votes, even though he was appointed by [Republican President] Gerald Ford in 1975, he is very much at the center or the head of the progressive wing in the Supreme Court. So it is very evident to him that Obama will appoint someone who will vote similarly, and that's important to him."
On how Stevens and the Supreme Court have changed since 1980
"[Stevens] was a Republican appointee, and he did dwell in the center of the court for many years. And now it is very clear that he is on the left. I asked Justice Stevens that question: 'Have you changed or [has] the court changed?' And his answer was very clear: 'The court has changed.' It's a much more conservative court. The moderate Republicans with whom he served — Harry Blackmun, Lewis Powell, David Souter — they're all gone. And the four conservatives on the court [Antonin Scalia, Roberts, Samuel Alito, Clarence Thomas] are much more conservative than where the center used to be."
On Stevens' trying to sway Justice Anthony Kennedy to take the liberal side in Lawrence v. Texas (2003)
"In Supreme Court history ... we often put too much emphasis on who wrote the opinion and not enough on who assigned the opinion, because that can be very important. Oftentimes, these coalitions are very fragile. So it is the assigning justice's job to assign the opinion to the justice who you might lose if someone else wrote it. By giving Lawrence v. Texas to Kennedy, Stevens held on to [Kennedy's] vote and preserved this enormous victory for gay rights — even though it's Kennedy who gets the glory, not Stevens."
On Kennedy's role on the Supreme Court
"Since [Justice] Sandra Day O'Connor stepped down in 2005, the court has been more directly and obviously polarized than it's been anytime in its history. You have four very conservative justices — Alito, Scalia, Thomas, and Roberts. You have four pretty liberal justices — Stevens, [Ruth Bader] Ginsburg, [Stephen] Breyer and [Sonia] Sotomayor. Winning in the Supreme Court now is about getting Justice Kennedy's vote. He has a mercurial, sometimes hard-to-predict view of the law, but it's all about getting Justice Kennedy's vote. Stevens has been very artful in persuading Justice Kennedy to join his side in some cases. He hasn't always won. In fact, he's lost a lot with Kennedy. But it's all about getting Kennedy's vote."
On what it will mean if the handgun ban is overturned
"It would mean that no state can infringe on the right to keep and bear arms. What that means is hard to say. Does that mean that you and I have the right to buy a Stinger missile? Does that mean we have the right to buy a tank? My sense is I don't think that's what the Supreme Court is going to mean. But they are going to have to refine what they mean by 'keep and bear arms' over many years, and this area of the law — which had been settled for decades, that the Second Amendment does not protect an individual's right to keep and bear arms — is suddenly wide open. And gun control is not just politically on the ropes; it is legally very much in question everywhere."
On Stevens' departure, if and when it happens
"This will not be a surprise to the Obama administration. They have very much suspected that a vacancy is imminent, and I think they do have a candidate in mind — and frankly, I think I know who it is. I think it's going to be Elena Kagan, the current solicitor general and the former dean of Harvard Law School. She has a reputation as a consensus builder. She is someone who brought vigorously fighting factions at Harvard together. She worked in the Clinton administration and had good relationships with Republicans in Congress at the time. She has never been a judge, which I think is a point in her favor for Obama. There are all former judges on the court now, and I think Obama wants people of more different backgrounds. So I think she's the likely choice."
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