james debate
james debate

Tuesday 6 April 2010

It has long been speculated that Justice John Paul Stevens, soon to turn 90, is on the verge of retiring from the Supreme Court of the United States. Sources now suggest that an announcement is imminent, perhaps by the end of this month, giving Obama an opportunity to nominate his second appointee to the court.

justice stevens retirement

Last year's replacing of moderate Justice Souter with Sonia Sotomayor gave the highest court in the land, commonly perceived as right leaning, a shift to the left, and liberals will be hoping that the President makes another ideological appointment. However, in the run up to an election where Democrats are fast becoming frustrated with a President who is unable to push through a unified opposition, it may be in the best interests of the administration to pick a "safer" candidate who can be sworn in quickly with a minimum of fuss, whilst still giving liberal voters something to celebrate.

Indeed conservative punters are probably thrilled to see Stevens, one of the driving forces of the so called "liberal wing" of the Supreme Court, stepping aside. But this is a fairly superficial conclusion to come to, as one realises when looking deeper at the dynamics of the court.

So in basic terms, after the Supreme Court votes on an issue one Justice from the majority then gets to decide who writes the court's official "opinion", basically deciding the specific language that will become the law of the land. If the chief Justice (currently the right leaning John Roberts) votes with the majority it will be him who makes this decision, and if he doesn't it will be the most senior Justice from the majority, which in recent times has been the left leaning Justice Stevens.

Stevens' unique persuasiveness and personality have made him a very effective champion for liberal causes in a court which often tends to be split down the middle between it's four right leaning Justices and four left leaning Justices. During a close vote, it almost always comes down to the moderate 9th Justice Anthony Kennedy to assume the role of the "swing vote" and decide whether it is the conservative Roberts or the liberal Stevens who gets to define the country's code of law. This has been the dynamic of the court in recent years, whoever wins Kennedy over wins the debate.

Conservatives would be justified in concluding that the gentle natured Stevens was instrumental in luring Kennedy, who votes with the conservatives more often than not, to side with the left in landmark rulings of recent times, and that his loss is a loss for liberals. But at the same time, Stevens' retirement completely changes this previously described dynamic. Now Kennedy will be the most senior Justice in almost any liberal majority, which means that he will have direct control over the language of any ruling that the liberal wing of the court wins.

This makes Kennedy a very powerful man, but more importantly it means that when it comes to close votes where Kennedy's position lies somewhere in between the liberal and conservative viewpoints, Kennedy will essentially have the choice of voting with the right and letting Roberts define the law somewhere to the right of what Kennedy believes, or voting with the left and getting to directly control the definition of the law himself. Whereas in previous years Kennedy may have leaned to the right because his viewpoint more closely matches that of Roberts than Stevens, now in almost all cases he might feel he can achieve a result that most closely matches his belief by siding with the left and writing a more cautiously worded opinion himself.

In short, Stevens' retirement might just offer the "swing vote" of the court all the incentive in the world to shift closer to the left in upcoming years.

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