Barry, the announcement was expected and as Justice John Paul Stevens notified the White House that he is stepping down after this term at the age of 90 – and more than 30 years at the high court – it’s likely that this summer will be an interesting one as President Obama gets set to name his second appointment to the high court.  

Justice Stevens has been a leading liberal voice on the Supreme Court and his imprint on some of the most important church/state cases is very clear.


Justice Stevens was the sole dissenter in Westside Community Schools v. Mergens.  In Mergens, the Court upheld the federal Equal Access Act.  The Act prohibited public secondary schools that receive federal funds and create a “limited open forum” for student groups from denying equal access to students who want to meet on the basis of the religious, political, philosophical, or other content discussed at the group’s meetings. A limited open forum exists whenever a school allows one or more “noncurriculum related student groups” to meet on campus, but the Act did not define the term “noncurriculum related student group.” 

Justice Stevens was the lone dissenting Justice. He suggested that the Act would violate the Establishment Clause if legislators voted for the Act to promote religious speech in public schools, even though the Act on its face did nothing more than provide equal access for student religious organizations.  He also argued that the Act should be much more narrowly interpreted than the plurality had interpreted it. In Justice Stevens’ view, “an extracurricular student organization is ‘noncurriculum related’ if it has as its purpose (or as part of its purpose) the advocacy of partisan theological, political, or ethical views. A school that admits at least one such club has apparently made the judgment that students are better off if the student community is permitted to, and perhaps even encouraged to, compete along ideological lines.” Thus, under Justice Stevens’ interpretation of the Act, public schools could recognize a large number of student clubs such as a swim team, French club, chess club, or scuba diving club, without being required to grant equal access to student religious clubs.

He was also the lone dissenter in Schiedler v. NOW, a case in which the Supreme definitively rejected all of NOW’s claims when it ruled that the use of the federal Racketeer Influenced and Corrupt Organizations (RICO) statute – a law designed to combat drug dealers and organized crime – was wrongly used against the pro-life movement. The decision was a tremendous victory for those who engage in social protests. The Supreme Court forcefully rejected the argument that pro-life demonstrators were racketeers engaged in extortion. The decision removed a cloud that had been hanging over the pro-life movement for 15 years, and effectively shut the door on using RICO against the pro-life movement. The ACLJ argued that a non-violent pro-life sit-in at an abortion business does not qualify as federal criminal extortion.  However, Justice Stevens thought the Court construed the RICO far too narrowly.

President Obama’s nominee to replace Justice Stevens is unlikely to change the current ideological split on the Supreme Court.  But I do believe that this appointment really represents more than just replacing one vote on the court.  With a replacement who is likely to serve for 30 or 40 years, it’s clear this replacement will have a long-term impact on judicial philosophy and likely play a determining factor in decisions for decades to come.

There’s been much speculation already about who President Obama would nominate when Justice Stevens retired. 

Justice Stevens has given the President plenty of time to act.  It will be an interesting summer.

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