Why the Retirement of Justice Stevens is Important

            For all too many Americans, the announcement that Supreme Court Justice John Paul Stevens would be retiring at the end of the Court’s current term probably fell into the category of “so what?” news.  The Court is the most under-rated branch of government under the system of checks and balances that is part of the genius of the U.S. Constitution.  It is covered only briefly (almost as an asterisk) in most high school civics courses.

            The other two branches, the Presidency and the Congress, are studied constantly, from the point somewhere around the sixth grade (or earlier?) when most students memorize the chronological order of the country’s 43 presidents and learn what major accomplishments (or lack thereof) marked each president’s tenure in office.

            America’s Congress, consisting of the Senate and the House of Representatives, is perhaps less studied in basic education of the K-12 variety, but it is ever present in the daily news that consumes headlines in local papers and commands coverage on nightly cable broadcasts.  And, in this highly partisan age of the new millennium, most Americans are all too familiar with the identity of the Speaker of the House, even if they aren’t entirely sure of how she directs the passage of legislation.

            But the United States Supreme Court is an altogether different entity in terms of educational focus and news coverage.  Who are the nine individuals who sit on the Court and what, exactly, do they do?  And, more importantly, why does it matter to the average American?

            John Paul Stevens was appointed to the Court in 1975 by then President Gerald Ford.  He was, at the time, a Circuit Court Judge in Chicago, a member of the Seventh Circuit of the U.S. Court of Appeals.  (The details of the federal circuit courts, including what they do and who sits on them, is arcane stuff for even some practicing attorneys, so let’s leave an explanation of those matters for another day.)

            Stevens had been appointed to the Court of Appeals by Richard Nixon in 1970 after having practiced law in his own law firm, where he specialized in anti-trust law.  He was viewed as a moderately conservative judge on the circuit court and was approved for the Supreme Court unanimously by the Senate when Ford nominated him to fill the position of William Douglas, who had been one of the Court’s staunchest liberals for forty years.

            Stevens continued to reflect a moderately conservative philosophy in the early years of his tenure on the Court, but around the time that William Rehnquist was elevated from Associate Justice to Chief Justice (in 1986 by Ronald Reagan), his opinions began to reflect a more liberal bent.  And, over the last quarter of a century (a mark of how long he has served on the Court) he has become the acknowledged leader of the liberal wing of the Court.

            The current makeup of the Court is generally viewed to be split along ideological lines.  Four justices are strong conservatives, four are moderately liberal and one (Justice Anthony Kennedy) is moderately conservative.  This split has existed for well over twenty years, and with President Obama expected to nominate someone left of center to replace Stevens, that split will likely continue for the foreseeable future. 

            But the Stevens’ resignation is big news nevertheless, because the Court’s work is far more complex than a simple counting of noses might suggest.  Who replaces Stevens, even assuming he or she will be a solid liberal vote, will most definitely matter.  Here’s why.

            The work of the Court consists of rendering decisions in cases involving either the Constitution or federal laws (to include federal regulations).  Those decisions are announced in written opinions, and those opinions control the way in which lower courts and regulatory agencies dispense justice or carry out the programs they are empowered to administer.

            Stated more directly, when the Supreme Court takes on a case for decision, two things occur.  First of all, the actual litigants get a final resolution (in most instances) of their dispute.  In other words, the Court considers the issues in the case, decides how those issues should be resolved, and writes an opinion that resolves the matter.

            That’s the easy part.  The hard part is the effect the decision in that particular case between those specific litigants will have on the rest of the country.  And it’s in this regard that the written opinions of the Court become critical, because those opinions immediately have precedential value.  In other words, the opinions of the Court become, in practical and legal effect, the law of the land.

            Consider for a moment the power of Congress to enact laws.  In this respect, that power pales in comparison to the power of the Court.  Congress can spend months debating over a specific provision in pending legislation (as was the case with the recently passed health care legislation) only to have the Supreme Court determine in a single case that the provision as written means something completely different than what many in Congress thought it did. 

            That decision by the Court will then supersede any agency regulations that had been previously promulgated based on the assumed meaning of the statutory provision.  Suddenly, federal law will have been dramatically changed by virtue of the written opinion of at least five members of the nine-member Court.

            And this fact is why the replacement of Justice Stevens will be so important.  As the Court’s senior Justice (and the leader of the liberal wing), he could (and often did) sway the way opinions were worded.  Thereby, he was able to keep the Court’s conservative wing in check and reduce the potential move to the right in any number of areas of the law.  Without someone of Stevens’ stature, that same conservative wing may feel more emboldened to move more aggressively on any number of issues that come before the Court.

            So pay attention to President Obama’s nominee to take Stevens’ place.  He or she will have some big shoes to fill in joining the most under-rated branch of the federal government.