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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.

By Ezra Klein  |  April 9, 2010; 12:21 PM ET
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yes, this court is more conservative than the court was at its most liberal. then again, if we hope in Cass' magical time machine and go back to 1980, then take a snapshot of how the court looked then compared to how it looked in 1950, the 1980 court looks incredibly liberal. in other words, the liberal period of the Warren court was something of an aberration, not the normal state of the court.

Posted by: jfcarro | April 9, 2010 1:04 PM | Report abuse

Sure, that sounds crazy and would never happen since Sotomayor is similar on that spectrum to White, and look how much crap she got. But then you realize that conservatives successfully did the same in reverse- imagine in 1980 saying that conservatives would eliminate the liberal wing and put in two more guys like Rehnquist and another Stewart or Burger- insane, it would never happen, right?

Posted by: _SP_ | April 9, 2010 1:13 PM | Report abuse

Excellent find on this point.

And the court will continue to slid right, as Stevens will be replaced with someone even more "moderate".

Posted by: troylevy | April 9, 2010 1:20 PM | Report abuse

I think we're about to get treated to a lot of talk about the Citizens United decision real soon

Posted by: Quant | April 9, 2010 1:58 PM | Report abuse

Ezra, your point about how far to the right the court has moved since 1980 is well taken, as is the first poster's response that comparing the court at one of its most liberal points to some other point is not very revealing.

Bottom line: the court of 1980 was the exact same court as the court of Roe v. Wage with a single change (Douglas out, Stevens in). While that was certainly a movement back towards the right (Douglas wrote the opinion for Griswold, the fore-runner to Roe), how that makes the court of 1980 "conservative" is something that needs to be explained a bit more thoroughly.

Posted by: blsdaniel | April 9, 2010 3:08 PM | Report abuse

How can anyone believe a Constitutional right to education or tax payer funded abortions is even remotely tied to legitimate Constitutional law?? Paging Goodwin Liu

Posted by: cdosquared5 | April 9, 2010 3:23 PM | Report abuse

"the liberal period of the Warren court was something of an aberration, not the normal state of the court."

Roe v. Wade, of course, was not decided by the Warren court, but by the Burger court. Warren retired in 1969. Roe was decided in 1973. The 7-vote majority was written by a Republican-appointed justice (Blackmun) and was made up of three Nixon appointees (Burger, Blackmun, Powell), two Eisenhower (Stewart, Brennan), one FDR (Douglas), and one LBJ (Marshall).

Even with no Democratic-appointed justices at all, Roe v. Wade would have become the law of land solely on the votes of Republican appointed justices.

Posted by: Bloix | April 9, 2010 5:08 PM | Report abuse

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