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Justice Stevens, Last Of His Line

First Posted: 06/09/10 06:12 AM ET Updated: 05/25/11 05:05 PM ET

John Paul Stevens

Justice John Paul Stevens's departure from the Supreme Court represents the end of an era. Just not the one you are probably thinking of.

Stevens's unblinking devotion to human rights, civil rights, and the rights of the little guy have led him to be widely seen as the Last Great Liberal Justice, the end of a lineage that included William Brennan, Thurgood Marshall and William O. Douglas.

But Stevens is something else entirely.

He is actually the last of the Moderate Republican Justices.

Stevens himself advanced this view in a an interview with the New Yorker's Jeffrey Toobin last month.

"For many decades," Toobin wrote, "there have been moderate Republicans on the Court -- John M. Harlan II and Potter Stewart (appointed by Eisenhower), Lewis F. Powell and Harry Blackmun (Nixon), David H. Souter (Bush I). Stevens is the last of them, and his departure will mark a cultural milestone. The moderate-Republican tradition that he came out of 'goes way back,' Stevens said. 'But things have changed.'"

What's changed, of course, is the Court's steady march to the far right. The four zealots on the Court -- Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel Alito -- engage in such extremist, blindered legal thinking that there's almost no chance any of them will ever join an even vaguely mainstream verdict.

Where Stevens will be most greatly missed, I suspect, is in his ability to sway that one remaining sometimes-swing vote, Anthony Kennedy.

I asked Caroline Fredrickson, executive director of the American Constitution Society, ground zero for progressive legal scholarship, about Stevens's track record in assembling narrow majorities. Here are the cases she cited:

* In Atkins v. Virgina (2001), Stevens swayed swing-Justices Sandra Day O'Connor and Anthony Kennedy to join his majority opinion recognizing that executions of mentally retarded convicts are unconstitutionally cruel and unusual. The six-justice majority stayed intact over vociferous dissents by Chief Justice Rehnquist and Justice Scalia. The minority would have upheld the mentally retarded defendant's death sentence.


* In Hamdan v. Rumsfeld (2005), Justice Stevens again persuaded Kennedy to join the left wing of the court in recognizing the jurisdiction of federal courts to review habeas corpus petitions from Guantanamo detainees. The five-justice majority rebuked the Bush administration's argument that Guantanamo was solely governed by executive prerogative. With Chief Justice Roberts not taking part due to having previously heard the case on the D.C. Circuit, the 3-justice minority was led Scalia, who called the majority's recognition of the limits on executive power "patently erroneous." The minority would have left Guantanamo detainees with no court in which to challenge their detention.

* In Massachusets v. EPA (2007), Justice Stevens wrote the five-justice majority's opinion requiring the Bush administration to enforce the Clean Air Act. The four justices in the minority, who all remain on the Court today, would have bowed to President Bush's prerogative, leaving the Act unenforced by determining that Massachusetts had no standing to bring suit for the potential air-quality damage resulting from nonenforcement.

* In Padilla v. Kentucky (2010), Stevens once more cobbled together a five-justice majority with Roberts and Alito writing separately to concur in the Court's judgment. Stevens authored the majority's opinion that the constitutional guarantee of effective counsel for defendants requires telling them about deportation and other immigration consequences stemming from a guilty plea. The minority would have limited the right to effective counsel only to criminal matters -- not immigration matters -- permitting defendants to submit guilty pleas without knowledge that the result would be deportation.

And what about when Stevens didn't win? Fredrickson again:

The best example of Stevens's honor in defeat is his 90-page minority opinion in Citizens United v. FEC, where the conservative wing of the Court -- for the first time in our country's history - determined corporate First Amendment rights to be equivalent to those of individual human beings. Stevens's dissent for the four-justice minority pulled no punches, and he read a summary to all attending that decision's announcement.

The right lesson to learn from this, however, is not that President Obama should seek another moderate Republican to take Stevens's place -- even if he were able to find such a creature today. There's no margin in trying to reaching out to people who don't reach back.

What Obama needs to do is try to find the person best able to fill the void of leadership Stevens leaves on issues of individual rights and liberties, genuine equality, access to justice, democracy and the rule of law.

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Dan Froomkin is senior Washington correspondent for the Huffington Post. You can send him an e-mail, bookmark his page; subscribe to RSS feed, follow him on Twitter, friend him on Facebook, and/or become a fan and get e-mail alerts when he writes.

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