Justice John Paul Stevens, who turns 90 in April, is the last moderate Republican on the Supreme Court, and his departure will mark a cultural milestone. In a profile of Justice Stevens in the New Yorker, Jeffrey Toobin reminds readers that Stevens, who was appointed to the Court by President Gerald Ford in 1975, was the last nominee before the Reagan years, when confirmations became contested territory in the culture wars. When Stevens leaves, Toobin concludes, the Supreme Court will be just another place where Democrats and Republicans fight.
The change in the Court is due in large part to the success of the Christian Right in putting religiously-motivated justices on the Court. The religious turn deprived the Court of more justices like Stevens, who decides issues case-by-case, on the merits, and provided it with Justices Scalia, Thomas, Roberts and Alito, who read the Constitution through grand theories that lead to predetermined conclusions. Although Stevens is viewed as a liberal justice, his cautious balancings are much less activist than Scalia's caustic certainties. As Toobin correctly observes, Stevens has also favored gradual change over sudden lurches and precedent over dramatic overrulings, while his new colleagues, especially Chief Justice John Roberts, practice an aggressive, line-drawing conservatism that appears bent on remaking great swaths of Supreme Court precedent.
Oddly enough, the demise of moderate Republican justices began with President Jimmy Carter, who served between Republican Presidents Ford and Reagan. The major organizations of the Religious Right were founded during the Carter Administration. Conservative Christians argued implausibly that the devout Southern Baptist Carter was really a secular humanist who dangerously led the nation away from its religious roots. They stepped up their political participation in order to return the nation to their Christian values, and sent first Ronald Reagan and later George W. Bush to the Oval Office.
Carter is one of the few presidents who never had an opportunity to appoint a justice to the Court. Nonetheless, Carter transformed the federal judiciary by appointing record numbers of women and minorities to the bench. Although only 8 women had been appointed to the courts by all Carter's predecessors, in one term Carter named 40 women to the federal bench, as well as significant numbers of African-, Asian- and Hispanic-American judges. Carter found these new judges through a merit system in which committees around the country identified the names of the most talented local lawyers and sent them to the White House. In 1980, however, the Republicans abandoned merit in favor of ideology. In 1980 the Republican Party's platform called explicitly for the nomination of judges who would overrule Roe v. Wade. From then on the Republicans sought judicial nominees who could reliably provide conservative results instead of judicial independence. Conservative Christians had to wait a long time for success, but they never abandoned the fight. Sandra Day O'Connor, Reagan's first appointee, decided cases based on their distinctive facts and never provided the fifth vote to overturn Roe. Reagan appointee Anthony Kennedy voted with O'Connor on abortion and wrote two opinions supportive of gay rights. The first President Bush appointed David Souter, who turned out to be another conservative disappointment because his vote was independent.
The second President Bush, a man much more openly and publicly religious than either his father or President Reagan, appears to have met the Religious Right's goals with the appointments of Chief Justice Roberts and Justice Samuel Alito. The Roberts Court has chipped away at the Establishment Clause and abortion rights, and can be expected to do more damage in those areas by the end of the summer. The campaign finance case, Citizens United, shows that the Court now likes to overrule precedents. Eventually the Court may get the case that finally allows it to overturn Roe.
Although Stevens is now the fourth-longest serving Justice in Supreme Court history, Toobin questions the durability of his legacy. Many great judicial legacies have a deep theoretical foundation--Oliver Wendell Holmes's skeptical pragmatism, William J. Brennan's aggressive liberalism, Scalia's insistent originalism, writes Toobin, and Stevens lacks that foundation.
The unpleasantly partisan nature of today's Court, however, confirms that Stevens's foundation is as deep and durable as Article III of the Constitution, which created an independent judiciary distinct from the political branches. We can hope that one day his record of judicial independence will persuade Republicans to return more moderates to the Court.