After Stevens - New Yorker

What will the Supreme Court be like without its liberal leader?

Jeffery Tobin - 22 March 2010

September 9th, 2009 Citizen United v. Federal Election Commission

• Dealt with the video about Hillary Clinton during the 2008 primaries.
• Bipartisan Campaign Reform Act of 2002 (McCain-Feingold) forbids political advartisements paid by corporations in the weeks before a primary--Citizen United challenged this law saying freedom of speech was violated.
• The Court seems open to the notion that corporations had the same rights as individuals.
• January 21, 2010 - Kennedy, along with four conservatives, overturned earlier precedents and said corporations have the right to free speech like individuals and that this did not give rise to corruption.

Stevens's History

• Stevens signed up for military service the day before the Pearl Harbor attack
• Spent most of 1942 in Washington learning to analyze enemy transmissions, before being transferred to Pearl Harbor where he served until 1945
• His time in the military probably explains his 1989 position, where he dissented from the decision that protected the right to burn the American flag as a form of protest.
• If those ideas are worth fighting for--and our history demonstrates that they are--it cannot be true that the flag that uniquely symbolizes their power is not itself worthy of protection.

1948 Ahrens v. Clark

• Wartime detention of German born US residents being held on Ellis Island in 1948.
• Should these detainees be allowed to challenge their detention.
• Stevens was the clerk for the Supreme court judge William Rutledge and thought they should be allowed to challenge their detention, but were on the losing side of this case.

2004 Rasul v. Bush

Stevens wrote for a 6-3 majority that detainees did have a right to challenge their detention in American courts.

2006 Hamdan v. Rumsfeld

Stevens wrote the opinion in a 5-3 majority that rejected the Bush administration plans for military tribunals at Guantanamo, on the grounds that it was a violation of the Uniform Code of Military Justice and the Geneva Conventions.

WWII was a defining experience of his life and since no one can challenge his patriotism, he was the right person to take on the Bush administration.

Stevens vs. Scalia

• Stevens believes that constitutional decision making is conducted through the interpretations and balancing act of a mix of various sources.
• Scalia - sees the role of the judge to read the text and apply it.
• In contrast, Stevens thinks that the law is more of a living thing and so he takes text and history and applies it in a way that he things serves the purpose of the framers, not necessarily their exact words.

2008 Baze v. Rees.

• Both Stevens and Scalia thought lethal injections was permissible.
• Stevens - State sanctioned killing is become more anachronistic; thought deterrence and retribution failed in practice; "I have relied on my own experience in reaching the conclusion that the.....death penalty represents the pointless and needless extinction of life with only marginal contributions to any discernible social or public purpose."
• Yet he felt bound to uphold lethal injections due to precedents.
• Scalia - "purer expression can not be found of the principle of rule by judicial fiat." Feels that Stevens just acts on his own whim.
• Stevens - the original intent cannot be the final answer. the world changes.