The Old Man and the Court

To great fanfare this week, Justice John Paul Stevens finally achieved the American Dream that eludes so many, as he managed to retire from his job before he turned 90.

Before Stevens essentially conceded that this term would be his last by failing to hire more than one clerk for the upcoming term, many analysts seemed to like the idea that Stevens would hang on for two more years so that they could preface their analyses of his work by heralding him as both the oldest and the longest-serving justice ever. Presumably, these are the same people who enjoyed John Franco's 20-year-long twilight of his career.

I am not saying that Justice Stevens was too old to do his job, although he actually remembers the Prohibition era. Heck, despite the fact that he is almost four times my age, he certainly seems much more lucid than me.

That said, it should be worth noting that Stevens replaced William O. Douglas, who will now remain the longest serving justice for ten more years (or longer, if Scalia is kidnapped by Eskimos who finally tire of being the reductio ad absurdum in his opinions). Douglas, having suffered a stroke, was thoroughly incapable of performing his judicial duties, to the point where he was forced out, at least officially. Periodically, the justices would return from conference to find Douglas in his office, working on imaginary cases. It was sad.

That is not to say that Stevens will be off deciding the merits of the mythical Ninjas v. Zombies any time soon. To the contrary. The fact that the most senior justice is retiring has a huge impact on the court, far beyond the simplistic dichotomy of left v. right.

There's two ways this can go. Stevens's retirement means that Scalia is the new senior justice, with Kennedy trailing in second. Unless the chief justice is in the majority, the senior justice gets to assign the opinion to any of the justices, including himself.

Now, since Scalia and Chief Justice Roberts tend to agree a lot of the time, this presumably leaves Kennedy in the driver's seat. We all know Kennedy loves the limelight. If any Court has a diva, he is it, relishing his place in the middle and the power that it gives him. Witness the number of key opinions he has authored in the last few years -- he often is granted authorship as a way of securing his vote. Should Kennedy elect to break from Scalia and Roberts, this leaves him in the position of power with the Court's liberal wing, and would grant him the power to delegate the most important opinions (almost all of which have come to a 5-4 vote since Roberts was tapped) to himself.

If you believe that all cases are decided solely on their merits and the law, my argument probably makes no sense to you. If you, however, live in the real world, then it might be worth watching.

On the other hand, the loss of Stevens leaves the court without the most influential liberal voice on the bench. By all accounts, Stevens was an excellent negotiator and mediator, and would help bridge gaps in the tradition of Chief Justice Warren. With his absence, the liberal wing of the Court will lack a clear leader. Sotomayor (as well as the newcomer) are presumably too green to take on this role, and Ginsburg too reticent. Breyer -- who loves to talk -- now finds himself as the de facto leader of the liberals. Whether he can court Kennedy, however, will be the key.

Like I said, the loss of Stevens leaves a huge void. Although he was appointed by Ford, Stevens quickly established himself as a strong liberal voice. Despite ably filling the role of the kindly old man of the Court, Stevens could be as cranky and cutting as Scalia. Witness, for example, his dissent in the Citizens United case, where he wrote that "Essentially, five Justices were unhappy with the . . . case before us, so they changed the case to give themselves an opportunity to change the law."

We are going to miss the bowtie and the "dude is old" remarks. Mostly, however, we are going to miss a strong and eloquent voice on the liberal side who helped shape the court for over a third of a century. With a legacy like that, maybe we can finally let a 90-year old enjoy what will hopefully be a long retirement.