Tradition, Head Fakes, and John Paul Stevens

Traditionally Supreme Court Justices retire when a president of the same party is in the White House that was in when he or she was nominated. There is no law that states that this must be so, but it is demonstrably tradition. John Paul Stevens who was nominated by Republican President Ford in 1975 is 85 years old and could possibly be considering retirement while George Bush is still President.

Stevens replaced ailing Justice William O. Douglas who was one of the most colorful and most liberal members in the history of the Court. Douglas, who was nominated by Roosevelt, suffered a stroke during the Ford administration and was unable to hold on until a Democrat was in the White House.

In his book, The Brethren, Bob Woodward suggests that Ford "ofcourse" could not nominate a conservative replacement for the most liberal justice who had ever sat on the bench. This suggest to me that liberals, for some time now, have been trying to tell Republican presidents what sort of nominees for the Court are allowed.

But where does Steven's allegiance lie? Is he loyal to the tradition of the court or is he loyal to the free-wheeling lack of restraint that he has demonstrated in the 30 destructive years that he has plagued the Court? If its the latter I fear he will choose to let someone other than George W. replace him.

His decision may rest upon Robert's and presumably Alito's approach to Roe vs Wade. If their approach is cautious, knowing the votes are not there to overturn, and if their treatment of any legislative tinkering with Roe is couched in a respect for the 33 years of precedent associated with Roe... then Stevens may feel more comfortable stepping down.

If this happens and President Bush is allowed to place another strict constructionist on the Court, then the court will tilt 5/4 to the conservatives, and the state legislatures will be free to carve abortion rights into something that reflects the beliefs and values of their constituents.

As I've said before on this site, the state legislatures in this country are not likely to flat-out ban abortion. But with five strict constructionists on the court, every stipulation, every qualification, and every impediment that state legislatures place in front of the abortion storefront will stand... making the overturning of Roe a formality and moot point.