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Replacing Justice Stevens

In this Sept. 29, 2009, file photo Associate Justice John Paul Stevens sits for a new group photograph at the Supreme Court in Washington. Stevens, leader of Supreme Court's liberals, will retire this summer. (AP)

Supreme Court Justice John Paul Stevens joined the court as a Republican centrist in 1975, the nominee of Republican president Gerald Ford. He will leave this summer, at age 90, as retiring leader of the high court’s liberal minority.

Justice Stevens says he’s still a conservative – that it’s the court that’s changed, moving sharply right. 

Now, President Obama must nominate Stevens’ successor – a big step in the long struggle over American life and law.

This Hour, On Point:  the Supreme Court after John Paul Stevens. We’ll look at his legacy, and who comes next for the high court.


Jan Crawford, chief legal correspondent for CBS News and author of “Supreme Conflict: The Inside Story of the Struggle for the United States Supreme Court.”

Jeffrey Rosen, professor at the George Washington University Law School. His most recent book is “The Supreme Court: The Personalities and Rivalries that Defined America.” Read his recent take on “POTUS v. SCOTUS,” President Obama vs. Chief Justice Roberts.

John McGinnis, professor at Northwestern University School of Law and former Deputy Assistant Attorney General under Presidents Reagan and George H.W. Bush.

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  • Larry

    We need to replace the corporate shills Roberts and Alito and Scalia.

    Since Roberts has been on the court he has decided with corporations every time over the citizen. He has decided with the state every time over the citizen.

    He has given corporations control over who is going to be able to get elected.

    He is a corporate tool who is setting about to take any little bit of freedom Americans have left away.

  • Ellen Dibble

    If Stevens assigned the minority opinion writer, and if Scalia falls next in line to do that, as next most senior — if I heard that right — all is lost. Scalia will assign the weakest opinion/opinion writer to write (presumably) the more left/citizen-friendly opinion. How mournful.

  • Jason S

    The court should concentrate their time on striking down unconstitutional laws like the EPA regulating Carbon dioxide and the healthcare bill.

  • Ellen Dibble

    I keep hearing that Obama will get two more Supreme Court appointments, and Stevens said a week or so that he would think carefully about the timing of his retirement. So I see a one-two punch coming. One, for Stevens, that will help the November elections, somehow. Two, after the elections, presumably, that shapes the court to Obama’s liking.

  • Larry

    The Supreme Court is out of touch with everyday Americans.

    The tragedy is that the Right believes that means another Right wing corporate shill who is a wolf in sheep’s clothing.

    During the Senate hearing they come as sheep bleeting, bleeting about how they will uphold the the Constitution and the rule of law and the rights of citizens.

    After they are seated they live as wolves tearing apart our Constitution and rights and always ruling with the corporations against the people.

  • Ellen Dibble

    Larry, I am wondering if either of the guests were able to distinguish that Alito and Roberts were “corporate shills” in any way, with 20/20 hindsight that could help the congress in looking forward.

  • Larry

    Ellen, if I could during their nomination and hearings then they could.

  • Ellen Dibble

    The result of the “Citizens” case where the Supreme Court opened the floodgates for corporate money in campaigns (as I understand it) ought rightfully to be that voters no longer pay ANY attention to political spewings on the air or otherwise.
    The supreme court can get itself to where we pay no attention, to where lawyers know enough NOT to take issues to them for decisions.

  • Mark Bolles

    Given the recent behavior of the so-called conservative majority, it becomes increasingly clear that the Bush legacy on the supreme Court will continue to tear at the fabric of American life and liberty for generations to come. The Republicans have no leg to stand on when they say they will filabuster an “activist” nominee. The more appointments President Obama can get, the better off we’ll all be

  • Aaron

    Definition of an activist judge: a judge who supports opinions contrary to one’s own.


    President Obama needs to nominate a Supreme Court replacement who will support life (by opposing abortion) and family values (by opposing the perversion of gay marraige). This country is rapidly descending into a moral cesspool and needs to be turned around before it is too late!

  • Wait one minute…

    Jan Crawford is the one that used the term “crazy leftist,” not Jeffrey Rosen. She is the one that is perpetuating th damaging myth that the first caller alluded to, that to be left is to be crazy. Has it ever occured to your guests that the center might be crazy? I think left-wing journalism, some of which is printed in the New Yorker, is some of the most responsible journalism in America today.

    When your guests disown their own left perspective in order to gain respectability they do so march harm to the cause of justice.

  • Ellen Dibble

    When Jan Crawford Greenberg said any of the three candidates (I guess Janet Napolitano is not on her short list) can articulate positions that stand up to Alito’s and Roberts’, I took heart greatly. That is what we need for square one. Not only what they think though, someone who can ask, as we heard Stevens would ask, “What do you think about this?” and turn the tide.
    As to certain judges, I do think, “What WERE you thinking?”

  • Wait one minute…

    When a reporter uses the term “crazy leftist,” a host should ask for a name or an example of what constitutes a “crazy leftist.” It is not responsible for a reporter to catagorically dismiss a legitimate point of view.

  • Pete

    Democrats did not filibuster Clarence Thomas, who went on to be confirmed by a 52–48 vote in the Senate.

  • Wait one minute…

    I propose the following terms to enter the 24/7 media meatgrinder:

    crazy centrist
    bomb-throwing moderate
    wild-eyed pragmatist


    President Obama needs to nominate a Supreme Court replacement who will support life (by opposing abortion) and family values (by opposing the perversion of gay marraige). This country is rapidly descending into a moral cesspool and needs to be turned around before it is too late!

    Posted by WINSTON SMITH, on April 12th, 2010 at 10:35 AM

    This is exactly the type of Judge who Obama should NOT nominate. To overthrow a woman’s right to choose what happens to her own body or regulate certain people to second-class citizen status based on religious biases does NOT emobody the American way of life and liberty.

  • Ellen Dibble

    Federal versus state law is one thing. What about international/global — the New World order? Who’s most savvy among the candidates?

  • Jason S

    The caller from Iowa was a great example of a uneducated progressive. Courts do not make laws! They can only throw them out. The caller that talked about states rights is correct. Government closest to the people is the strongest in the constitutional US system.

  • Wait one minute…

    Caller Sheila thinks the left is opposed to “individual liberties” and Ms. Greenberg does nothing challenge her. The ACLU could have been used as an example. ms. Greenberg listened politely and used the comment as a springboard to make her own point. Challenging someone is a sign of respect.

  • Janet

    It would be nice to see someone with different background i.e. not from Washington DC, Ivy College etc…maybe from the Midwest…

  • http://www.filipinoboston.blogspot.com akilez

    An Old Fart finally retiring at 89.
    He should have retired when he was 65 so he can give Young Smart Judges chance to be on the Supreme Court.

    What’s wrong with America work until you drop. Enjoy life. And if you are still paying Mortgages when 90 that’s your fault. You should have bought a house Cash.

    What did Justice John Paul Stevens do for his country?
    Answer retired at age of 89 to pay his mortgages

    Who cares about the Republican Supreme Court!

  • Wait one minute…

    Know what’s crazy? For a journalist to keep silent when something she knows is ahistorical is being repeated and then chooses to not act. Self censorship to maintain the middle ground is crazy.

  • John

    Calling Justice Stevens an old fart is a disgraceful and ignorant comment.

  • Larry

    Enough with the Catholics already.

    How about an atheist which is what many people in this country are?

    Now that would drive the Right right over the cliff with their mad dog reactions.

  • http://www.filipinoboston.blogspot.com akilez

    Why John are you related with the old fart? What did he do for you to resprect a rich old man for Chicago. 89 yrs of age read his Judicial history like the Bush v. Gore care in Florida.

  • http://www.filipinoboston.blogspot.com akilez

    By the way, what about the Scott v. Harris case? you see John I am not really Ignorant about this man that you Hail as Good Supreme Court Judge and the list goes on

  • AJNorth

    Let’s see; the The-Fascist Right is enraged (their natural state) over the likelihood that Mr. Obama will nominate for Associate Justice someone not a doctrinaire reactionary like the past several appointments made by them – in particular Clarence Thomas who replaced Thurgood Marshall and Samuel Alito who replaced Sandra Day O’Connor, both of which appointments moved the Court sharply to the right.

    The Right rails against “Judicial Activism” with a straight face? Oh, like consistently overturning decades – even centuries – of settled law (some may wish to familiarize themselves with the doctrine of Stare decisis).

    To call the Constitution a document fixed in time – the eighteenth century – is absurd; it must be viewed with modern eyes informed by observable, measurable and reproducible reality (believing the Earth to be six-thousand years old, for example, is a sign of profound mental illness).

    Finally, Obama was elected by an overwhelming majority; his predecessor, who lost the popular vote, was appointed.

  • dosch somervell

    How about putting Elizabeth Warren on the court? Why isn’t she on the short list? She is certainly on the side of the average citizen as opposed to being on the side of the few wealthy and rapacious representatives of the corporate elite as Roberts and Alito have shown themselves to be.

  • dosch somervell

    “This country is rapidly descending into a moral cesspool and needs to be turned around before it is too late!”
    Posted by WINSTON SMITH, on April 12th, 2010 at 10:35 AM

    To me much of the “…descending into a moral cesspool…” has to do with our culture of greed, over-consumption and complete and blatant disregard for the needs of the common people as well as The Constitution’s charge that we are to make decisions for our nation based on the common good (as opposed to the good of corporations and the most wealthy).

  • New Judges

    A previous caller asked “What is wrong with the liberal label?”

    To address that question, Justice Stevens wrote about Affirmative Action “In one opinion, he compared laws that set aside contracts for certain racial minorities as reminiscent of the Nazi-era laws.” Indeed, these policies that they have supported intellectually are evil cloaked in Liberal Affirmative speech. Thank GOD this old fool is retiring! Hopefully we can get these crazy, racist laws repealed.


  • Brett

    Ellen Dibble,
    I believe you are correct in that Scalia falls next in line to assign opinion. This is a significant aspect to Stevens’ retirement. Also, Stevens has had a good, working relationship with Kennedy; at the very least, the new Justice, one would hope, would be able to develop a good relationship with Kennedy.

  • Brett

    I do believe that conservatives have branded “liberal” Justices as “activist” because those Justices haven’t served to help overturn laws conservatives haven’t been successful in overturning through legislative means.

  • Todd

    “How about putting Elizabeth Warren on the court? Why isn’t she on the short list?
    Posted by dosch somervell

    @ dosch:
    I’ll 2nd that—I was thinking the very same thing! She’d be the perfect choice.

  • http://www.filipinoboston.blogspot.com akilez

    Thanks for the Info New Judge.

  • Rob

    Regardless of whether our political philosophy is liberal or conservative, I do not believe it is healthy for the US Supreme Court to be comprised entirely of people who spent virtually their entire prior career as appellate court judges. I think that other parts of the legal community (e.g. legal thinkers with more practical experience in politics, business, academia, etc…) should be considered for the Court as well. Unfortunately, it has become increasingly difficult to confirm Supreme Court justices in the post Robert Bork era. Therefore, Presidents generally nominate appellate court justices without any hint of controversy in their legal philosophy that could hurt confirmation chances.

    Also, @Larry commented “We need to replace the corporate shills Roberts and Alito and Scalia”. Any fair minded person who has actually read the opinions of Justices Breyer and Scalia would have to conclude that Breyer has sided with corporations at least as often as Scalia (and probably more often). A perfect example relates to state and federal government laws that set limits on punitive damages in litigation. Breyer has consistently ruled in favor of upholding state and federal laws that limit such damages, whereas Scalia has generally voted that such limits are unconstitutional. I am also curious regarding the legal basis by which you propose “replacing” Supreme Court justices that have not announced retirement? I guess liberals do not believe in following the US Constitution, when they disagree with a person’s legal or political philosophy.

  • John

    In Scott v. Harris, I think his dissent was that it should be for the jury not the Court to decide the facts of the case. In Gore v. Bush, he was correct that “Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.” Even if you disagree with these cases or the rest of his record, dismissing him as an old fart is not an intelligent criticism especially as his age has not been a detriment to his service on the Court. He is the only one of the justices who writes his own first drafts of opinions (presumably without eratic captialization, lack of punctuation, and spelling errors).

  • Wait one minute…


    Based on New Judges comment (as opposed to the original source Press Herald) he is critcizing a liberal judge for writing an opinion critical of affirmitive action language that is not race neutral. “New Judges” is arguing with himself/herself based only on hatred towards a group (liberals) not on the actual substance of the argument. It was the Press Herald’s editorial choice to say that Stevens joined the conservative justices to rule in favor of the reverse discrimination claim. Maybe the conservative justices were joining with him. You are talking about nine people with different motives, who may come to the same conclusion but arriving there from very different values.

  • Wait one minute…

    I would go even further to say that Justice Stevens may have been issuing a leftist position, as opposed to a centrist postion that supports affirmative action over other remedies for past discrimination.

  • cory

    I wish we’d do away with the notion of judges not having political affiliations. We all know that “strict constructionist” equals conservative and “judicial activist” means liberal. I think it’d be more honest if these nominees just had an “R” or a “D” after their name. Transparency and honesty are not things our culture or politics have in abundance.

    It has almost come to the point where you have to hope for a premature death in order to change the balance of the court. Another example of the political nature of the justices. They aren’t likely to retire unless their party is in power.

  • Wait one minute…

    “We all know that “strict constructionist” equals conservative and “judicial activist” means liberal.”

    Cory, I completely disagree with you. What we need are more true leftist opinions in the media and in government. The centrist postions are being mistaken for leftist positions (See President Obama).

    A lot of libertarians and leftists agree on issues, but you don’t hear these groups debating where they differ. If the media allowed true libertarians to debate true leftists you would not have such bizarre public discourse from the center. it is the center that is being the most irresponsible, either they are tamping down dissent or the foment it, mostly for career advancement.

  • Wait one minute…

    Take Affirmative Action for instance.

    I could easily see how a leftist and a libertarian would agree on remedies to past discrimination that would not include affirmative action, and might actually move us forward in a positive way. But instead all we hear about is affirmative action, and that really keeps the power in the same hands, they thrive on this strife, they benefit from the disharmony.

  • wavre

    Obama should nominate a “Clarence Thomas” like candidate for the left.
    We need our own” brainless sure bet”in the supreme court.
    But Obama, like usual,will once again avoid boldness, ignoring his overwhelming mandate for the sake of bipartisanhip.

    Trying to please everybody, you’ll end up pleasing no one. We need a president who will undo the dommages caused by the Cheney/Bush presidency.

  • Alex

    The whole concept of review and striking down of legislative acts by the courts is not written anywhere in the Constitution. It was a concept copmpletely made up in early 1800s by Chief Justice John Marshall. He went completely out of his way in a case where, as the court itself concluded, it did not have jurisidiction to lecture on the meaning of judicial review. So when conservative Justices strike down laws enacted by Congress it is a quintessential activism by definition.

  • millard-fillmore

    “Obama should nominate a “Clarence Thomas” like candidate for the left.
    We need our own” brainless sure bet”in the supreme court.
    But Obama, like usual,will once again avoid boldness, ignoring his overwhelming mandate for the sake of bipartisanhip.”


    Hmmm…so it’s OK to call Clarence Thomas a “brainless sure bet” without any fear of being called a racist or a bigot, but utter one criticism against a black on “our side” and all hell breaks free? Good to know how it works. :)

  • kung fu

    Barack Obama will nominate a justice to the Supreme Court who shares his own judicial views, Jeremiah Wright.

  • Alex

    “Hmmm…so it’s OK to call Clarence Thomas a “brainless sure bet” without any fear of being called a racist or a bigot, but utter one criticism against a black on “our side” and all hell breaks free? Good to know how it works.”

    Have you read any of the Thomas’s decisions? they are nothing to write home about.

  • millard-fillmore

    “Have you read any of the Thomas’s decisions? they are nothing to write home about.”


    Non sequitur.

  • David in Iowa

    Don’t worry, Obama will nominate a center-right judge to the supreme court. He has completely abandoned his base, and throws a bone to the hyper-conservatives whenever he gets the chance.

    Obama is a center-right corporatist, and I don’t really think he is any different from George W. Bush. Anymore you have the conservative Democratic party, and the fanatical ultra-conservative Republican party. I see no way of forming a more progressive nation, because both parties are basically the same. One is just more angry, ignorant and nasty than the other.

  • Daniel Waterhouse

    What does it take to become a ‘corporate shill’? What qualifications are sought by the propective employer? I am interested in the position and have an in with the Obama administration. Any constructive suggestions will be appreciated.

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