Replacing Justice Stevens

The world of punditry is full of opinions about filling the seat of Justice John Paul Stevens upon his long-overdue retirement this summer, so important has become the Supreme Court to our polity.

Doug Masson, perhaps half-jokingly, defended what I’d call a moderately activist judiciary. It’s moderate because the activism Doug advocated involved pulling legislative chestnuts out of the fire more than inventing new constitutional “rights”:

What occurred to me only later is what immense responsibility this would place on legislators if they were actually forced to deal with nothing but strict constructionist judges. They’d have to think through the full implications of what they wrote into law without being able to trust that judges would be, well, judicious in how the law was applied …

I’ve read enough legislation and draft legislation in my time to shudder a bit at the thought of judges applying the language absolutely in all situations unless the text specifically instructs them not to regardless of whether doing so makes sense or seems remotely just. That would really up the pressure on legislators to craft legislation meticulously, being sure to describe every caveat and exception.

I agree completely with Doug that lots of legislation is drafted shoddily, but I think that’s partly a consequence of knowing that the Court’s will bail them out.

I’d love to see our legislatures become something other than the Branch of Grand-and-Voter Pleasing Platitudes. Courts legitimately resolve ambiguities in positive law (i.e., legislative enactments), but a law can be unambiguously stupid. Unless there’s no rational purpose to it, judges should enforce it with perhaps a rebuke thrown in for the legislature (e.g., “What in heaven’s name they were thinking when they wrote this is beyond me, but ….”)

I am particularly appalled at the increasingly common disregard of legislators – at all levels, including County Commissioners – to shrug off their oath to uphold the Constitution by saying, in effect, that “constitutionality is for the courts to decide; I think this law will please my constiuents, so to hell with my oath.” (Okay, I exaggerate, but only a little.)

Adam Liptak at the New York Time is one of many noting that Stevens is, formally, the last Protestant on the Supreme Court:

His retirement, which was announced on Friday, makes possible something that would have been unimaginable a generation or two ago — a court without a single member of the nation’s majority religion.

I cannot recall what Protestant allegiance Stevens ever claimed, but were it not so implausible, I’d suspect he was a soul-competency Baptist. As I wrote quoted soon after his announcement:

[I]n four different places in an opinion barely five paragraphs long, Justice Stevens used the word “indoctrination” as a synonym for religious education. Stevens asserted that the voucher program was being used to pay for “the indoctrination of thousands of grammar school children.” He surmised that an educational emergency might provide a motivation for parents to “accept religious indoctrination [of their children] that they otherwise would have avoided.” He decried the fact that “the vast majority” of voucher recipients chose to receive “religious indoctrination at state expense.” And he depicted the voucher program as a governmental choice “to pay for religious indoctrination.”

This is not an unfair summary of Justice Stevens’ hostility to any religion that actually has doctrinal content that adherents think should be preserved and transmitted.  I infer that his deprecatory use of “indoctrination” reflects the view that everyone should decide all this stuff for himself or herself – a very, very American approach that has led to countless sects, cults and semi-Christian denominations, not to mention multiply-countless unaffiliated Churches (unaffiliated means you get whatever the Pastor feels like today – kind of like following a blog, except that bloggers, taken with the appropriate grain of salt, are less likely to lead you to delusion and damnation).

See also Ann Coulter’s entertaining take on the last Protestant. (Coulter is like a 15 car pileup – I feel guilty for reading her sometimes, but it’s irresistible. She is quite smart about the law, too.)

I agree with George Will that political experience is not a prerequisite, and I always have shuddered when someone like Oren Hatch is mentioned as a potential Supreme Court nominee because his colleagues respect him, he could be confirmed fairly easily, and he once upon a time went to law school.

Lastly, I’d say Timothy Egan is right on the facts about Harvard and Yale being disproportionately represented on the Court, but I’d sure hate to see law school diversity become a criterion for nomination. Yeah: Michigan, Chicago, Stanford (Justices O’Connor and Rehnquist, I believe) are top-tier, and I wouldn’t expect a Justice from the top tier of one of those institutions to be appallingly stupid. But I suspect, especially from his title (“Supreme Club”) that Egan is engaged in a little populist posturing at the highly elitist New York Times.