• Marc Johnson

Replacing Justice Stevens


Brandeis+portrait

With Justice John Paul Stevens retiring, President Obama has the opportunity to name his second justice in less than two years. How important is the pick?

Consider this: Since 1916 when Woodrow Wilson made the controversial appointment of Louis Brandeis to the high court (that’s his portrait to the left) only two other men have held the seat. Stevens, who has sat on the Supreme Court for 35 years, and William O. Douglas who held the seat even longer, more than 36 years. Brandeis served for nearly 23 years.

One seat on the Supreme Court and only three occupants in nearly 100 years. There is a lot riding on any Supreme Court appointment, but the symbolism of filling this particular seat – the liberal seat on the Court – assumes even greater importance.

Brandeis/Douglas/Stevens, each made a large and lasting mark on the Court and the nation. Filling those robes demands a respect for the history of the institution as well as a sense of how one person can shape the Court.

One sure thread ties the three famous justices together. Each was a champion of the individual and individual expression. Douglas once said that the Constitution is not “neutral…it was designed to take the government off the backs of the people.” In addressing the importance of the First Amendment he said, “Free speech is not to be regulated like diseased cattle or impure butter.”

Brandeis and Stevens shared a profound distrust of concentrated government power. One of Brandeis’ most famous quotes addresses his concern. “The greatest dangers to liberty,” he wrote, “lurk in the insidious encroachment of men of zeal, well meaning but without understanding.”

Brandeis, an opponent of “bigness” in government and business, opposed much of the expansion of presidential power under Franklin Roosevelt even while sharing FDR’s progressive desire to regulate banks and eliminate monopoly.

Stevens will be long remembered, I suspect, for his Hamdan v. Rumsfeld opinion limiting presidential power related to the war on terror.

Brandeis, the first Jew appointed to the Supreme Court, brought controversy with him in 1916. Former President William Howard Taft spoke against his appointment contending Brandeis was unfit to serve. The Senate took four months to confirm him, the vote was 46-22.

Douglas, only 40 when FDR named him, drew only four negative votes in the Senate, but went on to become an extremely controversial figure while on the Court. He was very political – FDR came close to putting him on the presidential ticket in 1944 – and very outspoken. Douglas championed environmental causes to such a degree that some Court observers thought his strong personal opinions influenced his judicial decisions. Ironically, then-Congressman Gerald Ford tried to impeach Douglas in 1970 and five years later appointed Stevens to replace him. Douglas caused more gossip in 1965 when he married wife number four, a woman a third his age.

Stevens, by all accounts has become so effective by mastering the careful, personal politics of the high court. And while he is the acknowledged leader of the liberal faction, he evolved into that role or, as he prefers, the Court evolved around him. This much is certain, whomever Obama nominates will not receive the unanimous Senate vote that Stevens’ nomination received in 1975.

Many factors will be weighed and measured in the coming nomination and confirmation of the justice who will eventually replace John Paul Stevens, but the president – a student of history – must know that the person he appoints will be filling an historically significant seat on the Supreme Court. Stevens, as Linda Greenhouse wrote in the New York Times, has been the bridge between two different kinds types of Supreme Courts – the one he joined in 1975 and the one he leaves this year.

The Brandeis/Douglas/Stevens seat should be reserved for a justice of historic importance, such is the legacy of this appointment. Barack Obama may make no other more important decision in his presidency.

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