Justice Announces He Suffered 'Mini-Stroke' Over Citizens United

Justice Stevens seems to suffer from the same blindspots as his colleagues.

Of all the anecdotes that Justice John Paul Stevens dropped in his New York Times interview with Adam Liptak promoting his upcoming book “The Making of a Justice: My First 94 Years,” perhaps the most interesting is the story about how one bonkers opinion ultimately drove him from the Court.

So in addition to decades of existing jurisprudence and a functional democracy, we can add the career of Justice Stevens to Citizens United‘s list of casualties:

Justice Stevens decided to step down on the day he delivered his dissent from the bench in the Citizens United case. He had stumbled over and mispronounced several words. “Unbeknownst to me,” he wrote, “I apparently had suffered a mini-stroke.”

So did anyone trying to make sense of that majority opinion. In all seriousness though, his missteps that day led him to seek medical advice and after learning of the stroke, he made the decision to quit. Justice Stevens made the responsible move under the circumstances, because if Citizens United tested his health — and he tells Liptak that he views that opinion along with Heller and the whack-a-doodle reasoning of Bush v. Gore as the three worst mistakes for the Supreme Court in his tenure — one can imagine how he’d have reacted to some of the doozies to come out of the Court since 2010.

Yet looming over the whole interview is the question: should American jurisprudence be held hostage to an aging jurist’s sense of their own health? It’s such a glaring subtext, that Liptak specifically asked the former justice if his views on term limits for the Court had changed over the years:

“I’ve never been in favor of them,” he said. “It presents an arbitrary termination point for a justice’s service. I know I, of course, would have served a substantially shorter time if there had been term limits.”

This is the blindspot with Justice Stevens and, frankly, almost everyone to ever don one of those robes. What justices seem incapable of grasping is that they are not, in fact, beautiful and unique snowflakes. The long march of the law will go on without them. There are more than nine Americans alive at any one time capable of divining the law. Justice Stevens might not have been on the Court into his 90s, but someone else — if we assume 18-year terms, that someone would probably have been Justice Ginsburg actually — would have been there to carry on the job.

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It’s a blindspot that’s ever more egregious when paired with the sanctimonious naivete the justices too often wrap themselves in. Chief Justice Roberts blasts President Trump for suggesting there’s any such thing as a “Republican Judge” and a “Democrat Judge.” How very adorable! Notably, Chief Justice Roberts didn’t engage in this sort of aggressive public shaming when Republicans blocked over a hundred judicial appointments sight unseen to set up the court-packing of the last year and a half. And, no, just writing the occasional letter about “emergencies” in circuits around the country doesn’t count because the difference between that milquetoast response and calling out a sitting president in the press is the difference between sitting down for a delightful post-work Manhattan and mainlining Jack Daniels through an IV.

Justice Stevens falls into the same “apolitical judiciary” trap:

Justice Stevens did say that it had been a mistake for Justice Kavanaugh and his colleagues to participate in a ceremonial swearing-in at the White House.

“I have been opposed to ceremonies at the White House,” Justice Stevens said. “It gives the impression that the court is subordinate to the executive, which I think is quite wrong.”

By “wrong,” Justice Stevens must mean “inappropriate” rather than “factually incorrect” because there’s literally nothing about Brett Kavanaugh’s road to the Supreme Court to suggest he views his post as anything but subordinate to the executive. Yet Justice Stevens has too much invested in the noble lie that the judiciary should harbor some apolitical omniscience.

But it doesn’t. The federal judiciary as we know it was born out of a Federalist court-packing scheme. Even if one buys the idea that the judiciary is supposed to keep itself specifically disentangled, the Framers clearly expected the evolution of the body over time to track the mood of the country as defined by the presidency. Give every president two justices. Let the Court’s interpretive lens shift, relatively glacially, with the country. Allow term-limited justices to serve out their life tenure on circuit duty while always being available to sit by designation if a sitting justice is unavailable. Laurence Tribe’s forwarded something akin to this proposal a few times and it makes a lot of the outsized importance of Supreme Court nominations out of the equation.

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For example, Justice Stevens says term limits are arbitrary, but you know what’s really “arbitrary”? Limiting Supreme Court consideration to people who happen to be no older than their early-50s. That’s an arbitrary limitation and one that only exists because politicians are hellbent on picking a justice that can keep pumping out contemporary jurisprudence well past the Rule of Political Perpetuities. That’s the reality we have to save for the sake of this “apolitical” judiciary?

As another noted jurist put it, “don’t pee on my leg and tell me it’s raining.”

‘It’s a Long Story’: Justice John Paul Stevens, 98, Is Publishing a Memoir [New York Times]
Retired justice says he decided to retire after suffering ‘mini-stroke’ during dissent [CNN]