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Justice Stevens' Retirement Marks an Opportunity Lost

by Joshua Mercer

Just eleven days prior to turning 90 years old, Supreme Court Justice John Paul Stevens announced his intention to retire at the end of the Court’s term this June.

Because Stevens is a liberal justice who will be likely be replaced by another liberal justice, some observers have said it will have little ideological impact on the High Court.

But this omits the obvious. Stevens will be replaced by a liberal judge 30 or even 40 years his junior. President Obama’s nominee might serve on the bench for three decades. And this individual will support legal abortion and the dubious court case Roe v. Wade that allows it.

There were several reasons that Democrats were hoping to defeat President George W. Bush in 2004. But one reason was clear: they wanted to stop the gradual conservative trajectory of the Supreme Court made possible from several Republican administrations. (Perhaps some people forget, there were only two votes for the unborn when Roe v. Wade was decided in 1973.)

After a few good nominees but also some major setbacks, the Supreme Court had only mustered some modest regulations on the horrible practice of abortion. By the 2004 election there hadn’t been a vacancy to the Court in 10 years. But many justices were considered probable to retire or leave.

As fate would have it, Chief Justice William Rehnquist died in 2005. Had John Kerry squeaked out a win in Ohio, a much different president would have nominated Rehnquist’s replacement. A Kerry nomination would have been someone like liberal Laurence Tribe of Harvard University instead of John Roberts, whom George W. Bush nominated to replace Rehnquist in 2005.

Having Roberts replace Rehnquist might not have changed the ideological mix of the High Court. But it kept a seat from being replaced by a supporter of abortion for possibly decades. What’s more, liberal Sandra Day O’Connor retired and was replaced by conservative jurist Sam Alito. The court continued its gradual conservative shift.

As George W. Bush’s second term was winding down, it was widely expected that several liberals like John Paul Stevens and Ruth Bader Ginsburg would retire if a Democrat were elected President.

But Justice David Souter surprised Washington and beat the other liberals to the punch by retiring in President Obama’s first year in office. To fill his seat, President Obama nominated (and the Senate confirmed) Sonia Sotomayor to the Supreme Court.

With Stevens’ retirement, President Barack Obama has another seat to fill and yet another opportunity to stall the conservative shift of the High Court.

It marks another missed opportunity to replace a justice who supports abortion with one that will recognize legal rights for all human persons, born and unborn.

The pro-life community would love for the High Court to recognize and enforce the right to life of all persons stately clearly in our Declaration of Independence.

We long for the day that the rights of the unborn will not be subject to the retirement plans of justices with life terms or the politics surrounding the nominating and confirming a new justice.

But even if the Court refused to acknowledge rights for the unborn by outlawing abortion, it could at least return the issue of abortion back to the states where it belongs. Before Roe, abortion was a state crime. And 46 states had laws on the books protecting children from the abortionist’s knife.

The nomination of Supreme Court justices remains a major presidential power. While Gerald Ford served as president for just over two years, his Supreme Court nominee was none other than John Paul Stevens, whose 34-year tenure on the Court will finally end this June.

Too bad he’ll likely be replaced by another, younger judge who will also be unwilling to recognize the promise of the Declaration for our youngest brothers and sisters. 

Joshua Mercer is Director of Communications and co-founder of CatholicVoteAction.org, a grassroots organization that provides a voice in politics for hundreds of thousands of lay Catholics. Previously, he served as Chairman of Students for Life of America and also Washington Correspondent for the National Catholic Register. Joshua lives with his wife Lori and three children in Michigan.

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The views expressed in this column are those of the author and do not necessarily reflect the positions of Headline Bistro or the Knights of Columbus.