Thursday, April 15, 2010

He'd Rather Be in Florida

Justice John Paul Stevens, who turns 90 this month, recently announced he would be stepping down from his seat on the U.S. Supreme Court.

Timothy Egan (The Big Burn: Teddy Roosevelt and the Fire That Saved America) thinks that his replacement should fulfill--or perhaps not fulfill--a particular requirement.
At last count, there were about 200 law schools in the United States accredited by the American Bar Association, but apparently only two of them--Harvard and Yale--can be a path to serving on the highest court in the land ...

Harvard and Yale need no extra seats at the high end of American power. The law school at Yale is currently represented by three justices--Sonia Sotomayor, Clarence Thomas and Samuel Alito--the latter two nominated by George H.W. Bush, Yale University class of ’48, and George W. Bush, Yale University ’69, Harvard Business School ’75.

Five sitting justices have gone to Harvard Law School--John Roberts, Anthony M. Kennedy, Antonin Scalia, Ruth Bader Ginsburg (though she transferred to Columbia) and Stephen G. Breyer. Three of them were appointed by presidents who went to Harvard or Yale. That’s an Ivy inside straight, a picture of narrow-minded exclusivity that defies the meritocratic ideals of this big land.
Will Stevens, the court's "liberal leader," be missed?

In a profile of the justice, Jeffrey Toobin (The Nine: Inside the Secret World of the Supreme Court) identifies at least one crucial period of Stevens' deliberations, with an outcome President Obama would do well to review for his new appointment.
[T]he summit of Stevens’s achievements on the bench came during the Bush Administration, in the series of decisions about the detention of prisoners at Guantánamo Bay, and he kept for himself the most important of these opinions. In the 2004 case of Rasul v. Bush, among the first major cases to arise from Bush’s war on terror--and the first time that a President ever lost a major civil-liberties case in the Supreme Court during wartime--Stevens wrote for a six-to-three majority that the detainees did have the right to challenge their incarceration in American courts.

In his opinion, which was written in an especially understated tone, in notable contrast to the bombastic rhetoric that accompanied the war on terror, he cited Rutledge’s dissent in the Ahrens [v. Clark] case--which he himself had helped write, fifty-six years earlier. One of Stevens’s law clerks, Joseph T. Thai, later wrote an article in the Virginia Law Review entitled "The Law Clerk Who Wrote Rasul v. Bush," which concluded that "Stevens’s work on Ahrens as a law clerk exerted a remarkable influence over the Rasul decision."
For more on the history of the Supreme Court, please browse our collection.

Photo courtesy of Kyle Rush (CC BY 2.0).

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