WASHINGTON — The leader of the liberal wing of the Supreme Court and one of its most strident supporters of unrestricted abortion access will retire at the end of the current term. The departure will give President Obama his second appointment to the court.
John Paul Stevens, 89, announced April 9 that he will step down after 35 years on the court. His longevity gave him the stature to rally other justices to his side on many of the most controversial issues the court has addressed in recent years. Stevens’ signature positions included staunch support for unfettered access to elective abortion, aggressive separation of church and state and outspoken opposition to the death penalty.
“On controversial social issues his views shifted over the years, and they generally tracked changes in what it meant to be an American liberal over the years,” said Thomas Smith, a professor at the University of San Diego School of Law.
In his abortion-related opinions in the 1986 case of Thornburgh v. American College of Obstetricians & Gynecologists and the 1989 case of Webster v. Reproductive Health Services, Stevens joined other members of the liberal wing of the court in affirming abortion as a constitutional right. However, he went even further than his fellow liberals in writing that any attempt to grant unborn human beings a legal right to life was inherently religious and thus unconstitutional.
“That was a pretty idiosyncratic way of coming at” a right to an abortion, said Richard Garnett, associate dean and professor at the University of Notre Dame Law School. “He was very consistent in voting to invalidate regulations of abortion.”
Stevens’ aversion to religion’s role in American’s public life carried over to his rulings on cases addressing the separation of church and state. Stevens rejected arguments to permit prayers in public schools, provide public funds for parochial schools and allow public displays of the Ten Commandments.
“He’s skeptical of religion. He’s concerned about religion’s influence and its presence in the public square,” Garnett said.
Such a strict “seperationist” view is deeply at odds with the teachings of the Catholic Church, said Stephen Krason, a professor of political science and legal studies at Franciscan University of Steubenville.
“Religion is clearly a good for society,” Krason said. Stevens’ view “marked a break from the view of our Founding Fathers on that.”
But the views of the retiring justice were not always seen as contrary to the Catholic Church’s views. Among Stevens’ positions that evolved over his more than three decades on the court were those on the death penalty. Stevens was seen as generally supportive of capital punishment when he joined the court in 1975, but roundly opposed it by the time he announced his retirement.
In 1976 Stevens co-wrote the main opinion that allowed states to resume the use of capital punishment. But in a 2008 opinion on Baze v. Rees, Stevens asked whether the time had come to reconsider “the justification for the death penalty itself.”
“Justice Stevens over time has moved to being more and more critical of the capital punishment regime, so a lot of Catholics would find reason to sort of cheer that,” Garnett said.
Despite such exceptions, Stevens was seen by many as having divergent views from many Catholic tenets and even hostile toward religion itself.
Krason lamented Stevens’ approach as “extreme individualism” on issues like abortion and pornography, where rights were seen as “utterly individualistic” with little understanding of the social impacts of immoral behaviors.
Test of Politics vs. Ideology
Stevens’ departure will leave a vacancy on the liberal end of the court that is generally thought to include Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor. President Obama is expected to nominate a liberal to take his place, but it’s unclear whether that will be an outspoken person who will draw heated Republican opposition.
Obama’s previous court nominee, Sotomayor, sailed through the Senate with some support from the Republican minority, but that may not be the case if a highly controversial judge is nominated this time. Since Sotomayor’s confirmation, Republicans have picked up a Senate seat with Scott Brown’s victory in Massachusetts, and they now have enough votes to filibuster a lightning-rod nominee.
Garnett expects a nominee who reflects Obama’s liberal views on the Constitution. However, the president may choose to avoid a bruising confirmation battle by nominating “someone to his right.”
Among the nominees reportedly under consideration to replace Stevens are Elena Kagan, solicitor general of the United States; Diane Wood of the 7th U.S. Circuit Court of Appeals in Chicago; and Merrick Garland of the U.S. Circuit Court of Appeals for the District of Columbia. Although Kagan is believed to be a strident abortion-rights protector, she has drawn some praise from conservatives for hiring across the ideological spectrum when she was dean of Harvard Law School.
“To me, that suggests that she may be open-minded enough to see both sides of an argument,” Smith said. “That can be a rare trait among judges.”
Obama’s replacement selection could have a major impact on court rulings important to Catholics for decades to come. Beyond the ongoing battle over limits to abortion, the high court will likely consider numerous cases involving religious conscience protections under the recently enacted health-care overhaul, Smith said. That measure is so complex that many Catholic institutions and health professionals don’t yet know what demands it will make of them regarding abortion, euthanasia and allegiance to their patients. Additionally, the Supreme Court is expected to eventually rule on the constitutionality of same-sex “marriage.”
Said Smith, “Among the issues that Catholics supposedly care about, this court will have a big impact.”
Rich Daly writes from Washington, D.C.