Stevens: Then and now
I'm running around the Hill this afternoon, but this old article by Cass Sunstein -- who now works for the Obama -- does a good job putting Stevens' role in perspective.
In 1980, when I clerked at the Court, the justices were, roughly from left to right, Brennan, Thurgood Marshall, Harry Blackmun, Byron White, John Paul Stevens, Lewis Powell, Potter Stewart, Warren Burger, and William Rehnquist. Believe it or not, this Court was widely thought to be conservative. But think, just for a moment, about how much would have to change in order for the Court of 2007 to look like the supposedly conservative Court of 1980.
First we would have to chop off the Court's right wing, removing Scalia and Thomas and replacing them with Marshall and Brennan. Far to the left of anyone on the Court today, Marshall and Brennan believed that the Constitution banned the death penalty in all circumstances, created a right to education, and required the government not merely to protect the right to choose but actually to fund abortions for poor women.
Next we would have to replace Kennedy with Blackmun. Blackmun was also to the left of anyone on the current Court. Fiercely protective of the right to privacy and opposed to the death penalty on constitutional grounds, Blackmun believed that the social-services agencies were constitutionally obliged to protect vulnerable children from domestic violence and that affirmative-action requirements were broadly acceptable.
Then we would have to leave Breyer, Stevens, Souter, and Ginsburg essentially as they are. All of a sudden, the four would be perceived as the Court's moderates rather than its liberals, operating as a group much like White, Stevens, Powell, and Stewart. (The parallel between White-Stevens-Powell and Breyer-Stevens-Souter is very close; true, Ginsburg is somewhat to the left of Stewart in many domains, but their voting patterns and general approaches are pretty close.) [...]
Here is another way to demonstrate the point. In 1980 Stevens often operated as the Court's median member; in many cases he (along with Powell) was the Justice Kennedy of that era. But Stevens is frequently described as the most liberal member of the current Court. If he qualifies for that position, it is not because of any significant change in his own approach, but because of a massive shift in the Court's center of gravity.
Think about that when you hear Stevens being called a liberal.
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