June 1, 2010

"Justice John Paul Stevens is the greatest Justice in Supreme Court history."

Argues Cliff Sloan, a partner at Skadden, Arps, Slate, Meagher, & Flom and a former Stevens law clerk. A key move in this argument is excluding the Chief Justices on the theory that they have extra powers so it's not a proper comparison. Then Sloan has 4 reasons:
First, his record of protecting and maintaining the rule of law during the “war on terror” stands unique in Supreme Court annals....

Second, Justice Stevens has fundamentally changed – and strengthened – the Court’s jurisprudence regarding personal freedom.... [He] has successfully re-framed the Court’s conceptual framework for personal freedom from a general “privacy” right, which is not mentioned explicitly in the Constitution, to a “liberty” right, which is prominently and explicitly protected in the Constitution....
Third, Justice Stevens has steadfastly sought to enforce the rule of law even when the Presidency hangs in the balance....
Fourth, Justice Stevens has powerfully re-shaped the law in an astonishing range of areas....
Go to the link to see the cases Sloan discusses. I would note that in some of the cases, Stevens has had something akin to the superpower that Sloan used to exclude Chief Justices from the analysis. When the Chief Justice isn't in the majority, the most senior Justice in the majority decides who will write the opinion. As such, over the last 20 years, he's authored many of the important opinions where the liberal side of the Court had the majority. That he wrote the opinion on the side that Sloan prefers isn't the evidence of a personal stamp on the law that Sloan would have us think.

Once Sloan gets to identifying and excluding the the competition for greatest Justice, the argument falls badly apart. He has to really strain to minimize Brandeis, Holmes, Brennan, Story, and the first Justice Harlan. He lost me here, but you've got to give Sloan credit for writing what would be a strong entry in a competition requiring an essay titled "Justice John Paul Stevens is the greatest Justice in Supreme Court history."

19 comments:

Steve said...

A lot of us non-lawyer types who think about constitutional issues still think it's a strike against him if he "powerfully re-shaped the law." Doesn't really seem like his job.

New "Hussein" Ham said...

"First, his record of protecting and maintaining the rule of law during the “war on terror” stands unique in Supreme Court annals...."

Yes, that's why Barack Obama ordered the murder of a United States citizen who has not even been charged with a fucking crime.

"Second, Justice Stevens has fundamentally changed – and strengthened – the Court’s jurisprudence regarding personal freedom ..."

Really, do we have personal freedom, or do we have to "invoke" our freedoms? Because last time I checked the Supreme Court ruled that we have to "invoke" our freedoms or they're meaningless.

"Third, Justice Stevens has steadfastly sought to enforce the rule of law even when the Presidency hangs in the balance ..."

That's why SEIU thugs can beat people up at town hall meetings with fucking complete impunity in the United States ... because Justice Stevens is on the case! That's why the Justice Department can drop charges against Black Panthers who have already pled guilty ... because Justice Stevens is the only justice standing between us as injustice.

"Fourth, Justice Stevens has powerfully re-shaped the law in an astonishing range of areas ..."

Really? Because I thought legislatures wrote laws and the Supreme Court's role was to evaluate those laws to ensure their constitutionality. I didn't realize that some people think it is the Supreme Court's role to "re-shape" laws.

Show me where in the Constitution it says it's the Supreme Court's role to "reshape" laws passed by the legislature. Because last time I read the Constitution, I didn't see that in there.

What.

A.

Fucking.

Joke.

mccullough said...

Justice Stevens is very bright, but not as good or as influential a justice as Justice Jackson and not as important as Justice Kennedy. Of Souter, Ginsburg, and Breyer, he is more important and likely to be more influential.

And as for "personal freedom," Stevens was also in the majority in Kelo and the dissent in Texas v. Johnson. Scalia was with the dissent in Kelo and the majority in Texas v. Johnson.

mesquito said...

We'll have none of the insolence from mere voters.

New "Hussein" Ham said...

"And as for "personal freedom," Stevens was also in the majority in Kelo ..."

The entire goddamned Supreme Court should be fucking ashamed of itself for that goddamned opinion. And the Miranda opinion too.

Fuck this court.

No further use for it.

The Drill SGT said...

He has to really strain to minimize Brandeis, Holmes, Brennan, Story, and the first Justice Harlan.

Frankfurter?
Douglas?


not that they top your 5, but arguably they top Stevens

EnigmatiCore said...

I just love when we get brand new anarchists in here. They are so warm and cuddly.

vw: mompity-- the lack of, or an excess of, probably contributed to it.

Joseph said...

Drill SGT: Douglas? Seriously?

Matt said...

David Souter gave a good speech at Harvard this weekend. Read it.

Fred4Pres said...

I will give credit that John Paul Stevens have been a very significant justice (if only for longivity), but the greatest would go to the most significant. It is definitely not Stevens. Marshall perhaps (the first sets the tenor).

Stevens is less significant than Warren, Black, Holmes, Brandies, Story, just to name a few.

Fred4Pres said...

has not have. my bad.

Fred4Pres said...

I like Douglas for being the greatest asshole on the Court (on a personal level it's true--and you have to admire greatness) and for being his own sort of guy (even if I disagreed with him).

C. Schweitzer said...

He wrote Kelo. To me, enough said.

tim maguire said...

I always considered Stevens to be the weak link in the Supreme Court chain. In law school, it was the rare Stevens opinion whose "analysis" didn't cause audible laughter.

Fred4Pres said...

Significant does not mean good. Significant means had an influence on the direction of the Court.

In Stevens case that influence is mostly bad (he ix good on some civil liberties).

Eric said...

A lot of us non-lawyer types who think about constitutional issues still think it's a strike against him if he "powerfully re-shaped the law." Doesn't really seem like his job.

Yep. Thomas is better on his worst day than Stevens was on his best.

Franklin said...

I love the smell of fascism masquerading as greatness in the morning.

Publius the Clown said...

"[He] has successfully re-framed the Court’s conceptual framework for personal freedom from a general 'privacy' right, which is not mentioned explicitly in the Constitution, to a 'liberty' right, which is prominently and explicitly protected in the Constitution."

So why shouldn't we bring back Lochner's constitutionally-protected freedom of contract? I've never understood how people can favor substantive due process in the social sphere but reject it in the economic sphere.

Much better to reject it in both places, to recognize that "due process" is a procedural right, not a substantive one, and to leave the relevant determinations on social and economic policy to the democratic process.

The fact that Justice Stevens did not do so on social issues is a big mark against him.

Bill said...

If he's going to exclude Chief Justices from consideration, then his title should be "greatest Associate Justice".