Next Supreme Court Justice to Solidify Right Wing, Neoliberal Control

On April 9, Justice John Paul Stevens delivered a letter to President Obama stating:

Having concluded that it would be in the best interests of the Court to have my successor appointed and confirmed well in advance of the commencement of the Court’s next Term, I shall retire from regular active service as an Associate Justice.

NBC anchor Brian Williams called him a “liberal lion,” a “lawyer’s lawyer.” UPI’s Michael Kirkland said he led the Court’s “four-member liberal bloc.” AP’s Mark Sherman and Calvin Woodward said he “carved a liberal legacy on the high court.” Clinton’s acting Solicitor General, Walter Dellinger, called him “the Chief Justice of the Liberal Supreme Court.” Writing in The New Yorker, Jeffrey Toobin said he was a “liberal leader (who’s) views suggest a sensibility more than a philosophy.” 

Others remember him both ways:  voting to reinstate the death penalty in 1976 and against “affirmative” preferences in the 1978 Bakke case; and  for his scathing 2000 Bush v. Gore dissent, support for reproductive rights, and the separation of church and state, among his other liberal and conservative decisions. 

In a 2007 interview, Stevens told journalist, Jeffrey Rosen, he hasn’t changed much since his 1975 appointment, saying:

“I don’t think of myself as a liberal at all. I think as part of my general politics, I’m pretty darn conservative.” His judicial hero is Supreme Court Justice Potter Stewart, Republican centrist and fellow “judicial conservative.”

Potential Successor Candidates

Some observers believe Solicitor General Elena Kagan is the leading contender. Educated at Harvard Law School, she then clerked for Justice Thurgood Marshall, followed by several years in private practice after which she taught law at the University of Chicago. In 1995, she became Clinton’s associate counsel, then deputy assistant for domestic policy and deputy director of the Domestic Policy Council. Clinton nominated her to the US Court of Appeals for the District of Columbia Circuit, but no confirmation hearing followed. In 1999, she taught at Harvard Law School, then, in 2003, university President Larry Summers appointed her dean, a position she held until confirmed Solicitor General in 2009.

As the president’s chief lawyer before the High Court, she’s well known as the “Tenth Justice.” In 2009, she was a finalist to replace Justice David Souter, leading some to believe she’s top choice now to succeed Stevens.

On April 12, University of Illinois Law Professor Francis Boyle said the following:

“As dean of the Harvard Law School, Kagan hired Bush’s outgoing director of the Office of Legal Counsel, Jack Goldsmith, as a law professor. Goldsmith is regarded by myself and many others in the field as a war criminal. He wrote some of the memos that attempted to make violations of the Geneva Conventions appear legal. Kagan actually bragged about ‘how proud’ she was to have hired Goldsmith after one of his criminal Department of Justice memoranda was written up in the Washington Post.” 

Boyle added more:

  • her endorsement of Bush’s “bogus category ‘enemy combatant,’ whose implementation has been a war crime in its own right;”
  • as Solicitor General, she supports illegal/unconstitutional positions in federal litigation, including before the Supreme Court;
  • she’s quoted saying, “I love the Federalist Society,” an extremist right wing group against democracy; for rolling back civil liberties and human rights protections; supporting imperial wars, torture, and corporatism; ending New Deal social policies; opposing reproductive rights, government regulations, organized labor, and environmental protections; and subverting justice in defense of privilege.

Five current Supreme Court justices are Federalist Society members: Chief Justice John Roberts, Antonin Scalia, Samuel Alito, Anthony Kennedy, and Clarence Thomas.

During her Solicitor General confirmation hearing, she supported the Bush administration’s world as a “battlefield” notion, war a proper legal framework for dealing with terrorism, and indefinitely detaining anyone called an “enemy combatant,” no matter its violation of constitutional and international law protections, or as Boyle explained in his June 8, 2007 article titled, ”Unlawful Enemy Combatants and the International Criminal Court:”

This “World War II era legal category of dubious provenance… is long-defunct,” yet Bush and Obama still use it — the term changed to “unprivileged enemy belligerents” under Section 1031 (the 2009 Military Commissions Act) of the FY 2010 Defense Authorization Act.

For Boyle, it’s a “quasi-category to create an anti-matter universe of legal nihilism where human beings (including US citizens) can be disappeared, detained incommunicado, denied access to attorneys and regular courts, tried by kangaroo courts, executed, tortured, assassinated and subjected to numerous other manifestations of State Terrorism,” all of which the current High Court, Congress, Obama administration, and both major parties endorse.

No wonder Texas A & M’s Bush School of Government and Public Service Professor William F. West called Kagan “a fan of presidential power,” the “unitary executive” kind under Bush and now Obama.

Himself a Harvard Law grad and Ph.D in political science, Boyle wrote twice about “Harvard’s Gitmo Kangaroo Law School: The School for Torturers,” most recently on April 1. At least five of its professors advocate torture and war crimes, including:

  • Detlev Vagts “who supported abusing” Saddam Hussein despite his prisoner of war protections under Third Geneva and the UN Convention against Torture;
  • Alan Dershowitz, a notorious bigot and advocate for murder and torture;
  • Richard Parker Boyle calls a “neo-con law non-entity;”
  • Phil Heymann, former Deputy Attorney General under Janet Reno, “the Butcher of Waco;” Heymann ordered the cover-up; and
  • Jack Goldsmith, complicit in the Bush administration’s crimes of war and against humanity for “designing, justifying and approving the hideous (post-9/11) human rights atrocities” — along with co-conspirator John Yoo and others; these men are no different than “Nazi Law Professor Carl Schmitt, who justified every hideous atrocity that Hitler and the Nazis inflicted” throughout Europe, including horrifically against Slavs, Jews, and everyone opposing their ideology.

In his June 17, 2008 version of the above article, Boyle accused Harvard law professors and deans of “no longer (being) fit to educate Lawyers, Members of the Bar, and Officers of the Court… Harvard is to Law School as Torture is to Law. The Harvard Law School Faculty and Deans torture the Law. Do not send your children or students to Harvard Law School where they will grow up to become racist war criminals! Harvard Law School is a Neo-Con cesspool.” 

And now perhaps one of their own, former professor and dean Elena Kagan, may replace John Paul Stevens, shifting the Court further to the right by subverting justice and democratic freedoms in favor of privilege.

Court Over Constitution

On February 27, this writer’s article, titled “America’s Supremes: Court Over Constitution” said the following:

In all three branches of government, “America was always ruled by men, not laws, who lie, connive, misinterpret, and pretty much do what they want for their own self-interest and powerful constituents. (Like today), In 1787, “the people” who mattered most were elitists. The American revolution substituted new management for old. Everything changed but stayed the same under:” 

  • an illusory democracy;
  •  a powerful president; a virtual dictator in times of war;
  • a corrupted Congress representing privilege, not people; and
  • a separate judiciary able (through “judicial review”) to overrule Congress and the Executive, but most often goes along; power supports power, the kind today heading America toward tyranny, already well advanced with obliging High Court help.

Other Potential Choices

Merrick B. Garland, Judge on the US Circuit Court of Appeals for the District of Columbia Circuit and Harvard Law grad. He then clerked for Supreme Court Justice William Brennan, briefly served as a Special Assistant US Attorney General before entering private practice, during which time he also worked as an Assistant US Attorney for the District of Columbia. In 1993, he became Deputy Assistant Attorney General in the DOJ’s criminal division, and in 1994 principal Associate Deputy US Attorney General.

Called a moderate, he wasn’t a finalist in 2009 to replace Souter. Conservatives may support him. Liberals may object, but both sides have other preferred choices. In their April 10 article headlined, “Who Should Replace Justice Stevens,” Emily Bazelon and Dahlia Lithwick named Garland, Kagan and Judge Diane Wood as the frontrunners, then listed other possibilities, some familiar, others less known.

In his April 10 article titled, “Justice John Paul Stevens announces his retirement from the Supreme Court,” Washington Post writer Robert Barnes quoted Alliance for Justice’s Nan Aron saying:

“Republicans will oppose any nominee sent up by the president. This is already a court that’s tilted in favor of large corporations and special interests. Justice Stevens’ replacement ought to be a person who understands how decisions affect the rights of everyday Americans.” 

On April 9, the Alliance for Justice web site praised Stevens’ “Historic Legacy of Championing Constitutional Values… his distinctive voice will be greatly missed,” and not likely replaced by his successor.

Diane P. Wood, Judge on the 7th US Circuit Court of Appeals in Chicago and University of Texas School of Law grad. She then clerked for Supreme Court Justice Harry Blackmun, worked as a lawyer-advisor in the State Department’s Office of Legal Advisor before entering private practice. She also taught law at Georgetown University and the University of Chicago where she was also associate dean. During the Reagan administration, she served as special assistant to the Associate Attorney General, and as the Antitrust Division’s Deputy Assistant Attorney General for international, appellate and policy matters under Clinton before becoming a federal judge.

In his May 2009 New Republic article headlined, “Good Wood,” Jeffrey Rosen called her “The second coming of Ruth Bader Ginsburg,” quoting University of Chicago’s “libertarian scholar” Richard Epstein saying:

She has an ideal judicial temperament,” admired by “her colleagues, her clerks, and the lawyers who practice before her… open to argument on all questions, and the lawyers who appear before her know they will get a respectful hearing. She is theoretically rigorous but nondogmatic. I think that her nomination should be greeted with acclamation by Democrats and Republicans alike.


Perhaps the former, not the latter if the National Review‘s Ed Whelan (“bench memos,” May 22, 2009) comment is indicative, calling Wood “a hard-Left judicial activist and aggressor on culture-war issues.” More  saying she’s “ready to invent a constitutional right to same-sex marriage… believes (including) ‘under God’ in the Pledge of Allegiance violates” the Constitution’s Establishment Clause, (stating “Congress shall make no law respecting an establishment of religion”), is “more extreme” than other judges on abortion, and aggressively pursues “her ideological agenda.”

Other Names Mentioned

— Michigan Governor Jennifer Granholm, wasn’t a finalist in 2009, unlikely to be now;

— Harold Koh, former Yale Law School dean and current State Department legal advisor, a man Glenn Greenwald calls “genuinely liberal,” for sure why Republicans will strongly oppose him;

— Greenwald also calls Diane Wood and Stanford Law Professor Pam Karlan superior choices, compared to Kagan who’ll shift the Court further to the right;

— Cass Sunstein, University of Chicago Law School visiting professor, (on leave) Harvard Law professor, current White House Office of Information and Regulatory Affairs Administrator, and another candidate Greenwald opposes in his March 26 article titled, “The Horrible Prospect of Supreme Court Justice Cass Sunstein,” saying:

“From the beginning of the War on Terror, Cass Sunstein turned himself into the most reliable Democratic cheerleader for Bush/Cheney radicalism and their assault on the Constitution and the rule of law.” He also supports military commissions, illegal surveillance, and “mock(ed) the notion that Bush had committed crimes while in office.” Given those credentials, he’s as dangerous as Kagan and other suggested right wing possibilities.

— DHS Secretary Janet Napolitano for one, a 2009 finalist, hard line in her present position, militantly anti-immigrant, and was earlier accused of corrupt cronyism as Arizona governor;

— Secretary of State Hillary Clinton, a hard line, neoliberal hawk, who once told ABC’s Good Morning America (during the 2008 campaign) that if Iran attacked Israel (implausible on its face), America would respond by “obliterating” the country; in other words, incinerate its entire population in a nuclear holocaust;

— Massachusetts Governor Deval Patrick, a personal friend of Obama and fellow Harvard Law grad;

— Harvard Law School Dean Martha Minow, confirmed by an anonymous White House source as one of at least 10 contenders; Slate writer Emily Bazelon calls her “a great dark horse… a star legal academic… and a leading expert on family law; she’s also close to Obama, having mentored him as a law student, and her father, former FCC Commissioner Newton Minow gave him his first legal job as a summer law firm associate; and

— numerous other names mentioned in various High Court sweepstakes opinion pieces, most unfamiliar to the public.

America needs no more Scalias, Alitos or Kennedys. It needs another Thurgood Marshall, William Brennan or William O. Douglas, more then to follow. Instead, Obama will likely shift today’s extremist Court even further to the right, for sure if Elena Kagan is appointed or others with similar credentials.

Stephen Lendman wrote How Wall Street Fleeces America: Privatized Banking, Government Collusion and Class War. Contact him at: Also visit his blog site and listen to The Global Research News Hour on Mondays from 11AM-1PM US Central time for cutting-edge discussions with distinguished guests. All programs are archived for easy listening. Read other articles by Stephen.