In the most closely watched cases of the term, Boumediene v. Bush and Al-Odah v. United States, Stevens may attempt to persuade Justice Kennedy to join the four liberals in striking down parts of the Military Commissions Act of 1996, in which Congress arguably suspended habeas corpus for detainees at Guantanamo Bay. The case seems like one for which Stevens has been preparing his whole life, and he is sure to draw on his experiences clerking for Justice Wiley Rutledge. (For a thoughtful exploration of Justice Rutledge's influence of Stevens in terrorism cases, click here.) In the Hamdan case in 2006, Stevens wrote an opinion for the Court striking down President Bush's military commissions on the grounds that they hadn't been authorized by Congress; in his opinion, he cited one of Rutledge's dissenting opinions in a post-World War II case involving liberty and security. Congress responded by explicitly authorizing military commissions and restricting the ability of the Guantanamo detainees to challenge the legality of their convictions; the question in the current case is whether this represents a valid suspension of the writ of habeas corpus.
Stevens and Kennedy initially voted to turn down the Guantanamo prisoners' petition for review because they had not exhausted the remedies established by Congress. But he and Kennedy warned, citing another opinion by Justice Rutledge, that the government shouldn't create an unnecessary obstacle course, and they seem to have agreed to change their votes when it became clear that's what the government was doing. If Stevens persuades Kennedy once again to embrace Rutledge's World War II-era notion that independent judges are necessary to supervise executive power during wartime, he will achieve one of the greatest victories of his long career.
A final blockbuster case the Court may agree to hear later this term involves the constitutionality of Washington, D.C.'s ban on handgun possession. The Supreme Court hasn't ruled since 1939 on the Second Amendment's protection of the right to bear arms. But in March, the federal appeals court in Washington struck down the D.C. ban, one of the most sweeping in the nation, on the grounds that the Second Amendment was originally understood in the late 18th century as a protection for an individual right to bear arms, not simply the collective right to serve in the militia. Stevens's views are hard to predict -- although he has voted with the individual and against the government in criminal justice cases more frequently than any other justice. But he is unlikely to be impressed by the unlikely coalition of liberal historians who have joined conservatives and libertarians in emphasizing the historical roots of the individual right to bear arms. In our conversation, Stevens told me that although the original understanding of the Constitution is always important, it should never be the beginning and end of constitutional interpretation. In his most powerful opinions, Stevens has invoked his personal experiences to comment on the narrative arc of all of American history. His experience with the war on guns stretches back to the days of Prohibition, and he may bring it to bear in the gun case in unexpected ways.
Although Stevens's votes this term may be hard to predict, his role will remain central on a closely divided Court as the leader of the opposition. When we talked, I was greatly impressed with Stevens's vigor and intelligence, but above all by his character. In the companion book to the PBS series THE SUPREME COURT, I explored the role of personality and temperament in shaping the Court and the country throughout American history. With his engagement, curiosity, combination of toughness and vision, modesty, and devotion to the Court as a stable institution over time, Stevens is a vivid reminder of how much character matters.
Jeffrey Rosen is a law professor at George Washington University. He is a contributor to the PBS series, THE SUPREME COURT, and is the author of the companion book to the series, THE SUPREME COURT: The Personalities and Rivalries that Defined America.
Photograph of Justice Wiley Rutledge, from the chambers of Justice Stevens, inscribed: "To John Paul Stevens, my friend and former clerk, with appreciation and affection. Wiley Rutledge July 1, 1949."
Photo Credit: The Oyez Project