Thursday, December 28, 2006

Gerald Ford's Greatest Legacy: John Paul Stevens

As a Congressman, Gerald Ford notoriously stated, in connection with the unsuccessful effort to impeach Justice William O. Douglas, "that an impeachable offense is whatever a majority of the House of Representatives considers [it] to be at a given moment in history." Read in context, this statement was not quite the "might makes right" manifesto which it is often taken to be. (Read Ford's full testimony here.) Nonetheless, because Ford was associated with a perceived attack on the independence of the Supreme Court, he was presented with a delicate situation when Douglas's seat opened up during his Presidency. Ford addressed that opening as a statesman, naming an extremely well regarded moderate: John Paul Stevens.

Although President Ford, may he rest in peace, left the national political stage long before his death, over three decades later, Justice Stevens is still going strong. In June, he authored the Supreme Court's most powerful rebuke of the Bush Administration's assertions of executive power, in the Hamdan case. Although the Military Commissions Act of 2006 reverses the specific outcome of that case, it vindicates the broad principle for which Stevens labored: that the President must seek authority from Congress for military tribunals. In the Rapanos case, his view of the authority of the Army Corps of Engineers under the Clean Water Act essentially won out over the much more restrictive view of the Court's conservatives. More broadly, although Justice Anthony Kennedy clearly holds the balance of power on the Roberts Court as currently constituted, when Kennedy swings liberal, he joins majority opinions of what can best be called the Stevens Court.

To be sure, even though Stevens is one of the most liberal members of the current Court, he was, at the time of his appointment, a moderate. As late as 1989 he voted (with the majority in the Croson case) to invalidate Richmond's affirmative action program and (in dissent in Texas v. Johnson) to uphold a flag-desecration prosecution. Whether Ford anticipated the evolution of Stevens from a moderate to a mostly reliable liberal is, in some ways, beside the point. Republican Presidents who have sought strong ideologues have had little difficulty finding them (as I argue in an article forthcoming in the Harvard Law & Policy Review). Ford chose Stevens knowing that he would exercise independent judgment, which would, in turn, often be used to frustrate policy goals of Republicans. That is to Ford's credit, not because I'm a liberal and so I like Stevens (although I am and I do), but because Ford recognized that, having come to power without having won a majority vote of his fellow citizens, he had an obligation to govern as a centrist. Would that our current President felt the same obligation.