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Monday, April 9, 2007

Respect Your Elders

In an article in USA Today last week, entitled “Senior Justice Has Leading Role at Key Time,” Joan Biskupic chronicled the increasing influence wielded by Justice John Paul Stevens, which has reached its apex during the current “post-O’Connor court.” The Supreme Court’s 10th longest-serving justice, Justice Stevens was known in his early years on the Court for his “quirky independence.” But now he seems, from indications in last week’s decisions on global warming and Guantanamo, to be “working closely with Justice Anthony Kennedy”—widely regarded as the swing vote on the Court—to secure five votes on important decisions.

Appointed as a conservative, the article notes that Justice Stevens’ current position “squarely at the helm of the liberal bloc…stems largely from how much the court has shifted,” rather than from a change in the justice’s substantive positions on the law. On the Roberts court, says the article, the so-called liberal justices “have more moderate approaches” than the conservatives, which align with the legal views of Justice Stevens.

A former clerk of Justice Stevens, Deborah Pearlstein, speculates that he “may be more occupied these days with managing the strategic center” on the highly divided court. His majority opinion in the global warming case voluminously cited a concurrence by Justice Kennedy in an earlier case—perhaps an indication that Justice Stevens was courting Justice Kennedy for the latter’s crucial vote. And when the high court declined to hear an appeal by Guantanamo detainees, Justice Stevens issued a statement, joined only by Justice Kennedy, elaborating their reasons for the denial. With most of this term’s blockbuster cases yet to be decided, we hope that the elder justice continues to prevail upon that “strategic center” in order to thwart a jurisprudential shove to the right by the newest justices.

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