Academic

Justice Stevens and the Democratic Primaries

By David S. Cohen

I’ve seen a few articles over the past week in which Clinton supporters said they would not support Obama if he won the Democratic primary.  And, I’ve had conversations with Obama supporters who said the same about Clinton.  For both (and for full disclosure, I’m an Obama supporter), I am shocked.  How could you not support the other if s/he won?  If for no other reason than that Justice Stevens is 88 years old.

In past elections, the prospect of a change on the Supreme Court was important.  But, losing Roe and other progressive precedents has never been as possible as it is now.  In the recent past, we had Justices O’Connor and Kennedy on the Court as the “swing” votes.  But this is the first Presidential election since O’Connor retired, which means we now have four solid conservative votes in Chief Justice Roberts and Justices Scalia, Thomas, and Alito.  As I’ve written about, Kennedy is not as much of a swing Justice as some make him out to be, but he is, at this point, an important vote for gay rights (in some circumstances) and for the basic right to choose (albeit with restrictions).

At 88, Justice Stevens is the oldest member of the Supreme Court.  I wouldn’t put much money on the chances of him making it as a member of the Court to 2012, the next presidential election.  So, in all likelihood, he will need to be replaced during the next President’s term.  If McCain is the President, he has given every indication, through his votes and his speeches, that he would appoint another Justice in the Alito/Roberts conservative mold.  With that Justice replacing Stevens, the McCain-appointed conservative would be the fifth vote for a young, solid conservative majority on the Court.  Roe, Lawrence, Romer, Gratz, VMI, and many other progressive decisions would be at serious risk.

But, if Clinton or Obama is President, whatever you think of their general merit compared to one another, Justice Stevens’ replacement would undoubtedly not be a young conservative.  With a likely more solidified Democratic majority in the Senate, President Clinton or President Obama would protect the progressive Supreme Court that has become central to our modern constitutional order.

If for no other reason, whichever Democratic candidate wins this primary has my vote.  And s/he should have yours too.

- David S. Cohen

Full post as published by Feminist Law Professors on May 20, 2008 (boomark / email).