Here.
We did a retrospective of his Indian law jurisprudence when he retired in 2010.
Justice Stevens
Justice Stevens Critical of Seminole Tribe v. Florida & Sovereign Immunity
In his new book, according to the National Law Journal’s Marcia Coyle, Justice Stevens levels strong criticism at the Supreme Court’s decision in Seminole Tribe v. Florida:
The tenor of the Court’s deliberations changed immediately when William Rehnquist became chief justice, according to Stevens. Rehnquist, he writes, was an impartial presiding officer and meticulous in noting the justices’ different positions on issues in each argued case. But Stevens levels some of the book’s sharpest criticism on Rehnquist’s decisions involving state sovereign immunity. Stevens considers the first in a line of 11th Amendment rulings — Seminole Tribe of Florida v. Florida — one of the Court’s worst rulings in his nearly 35 years. In an interview withThe National Law Journal, he explained that sovereign immunity is a “doctrine of injustice.”
And he calls the retirement of Thurgood Marshall, the “most significant judicial event” of Rehnquist’s tenure as chief, not only because of Marshall’s contributions to the Court’s conference but because of the changes in the Court’s jurisprudence attributable to the votes of his successor, Clarence Thomas.
ICT Article on the Next Supreme Court Justice
From ICT’s Rob Capriccioiso:
WASHINGTON – Justice John Paul Stevens’ retirement from the U.S. Supreme Court has some tribal legal advocates calling for an American Indian replacement.
Stevens, who announced April 9 he would retire in late June or early July, has served on the court since 1975. A member of the court’s liberal voting bloc, he slowly grew stronger on tribal issues, including sovereignty, during his tenure, legal observers said. Still, the consensus is, he had a long way to go.
“Justice Stevens’ record on Indian issues is a mixed bag,” said Chris Stearns, a Navajo attorney for Hobbs Straus Dean & Walker and a commissioner with the Seattle Human Rights Commission. “His 35-year tenure on the court meant he was involved in some of the most significant cases in Indian law history.
“He wrote the Supreme Court’s [1979] opinion affirming the Boldt decision upholding Washington tribal fishing rights and rejecting the state of Washington’s appeal led by then-Attorney General Slade Gorton. That case remains one of the most profound recognition of the power of treaties.”
Stearns added that Stevens was “the lone voice of reason” on the court during the controversial Carcieri decision of 2009, in which he argued in favor of the Narragansett Tribe’s position.
On the other hand, Stearns noted that Stevens sometimes dissented against tribal interests in cases favoring tribes, such as Cabazon, which involved gaming, and Holyfield, which involved the Indian Child Welfare Act.
Matthew L.M. Fletcher, director of the Indigenous Law and Policy Center at Michigan State University, expanded on Stevens’ anti-tribal decisions, saying that his legacy in Indian law is “very, very bad.”
Fletcher said that Stevens was particularly tough in the area of federal Indian law preemption cases, where all tribal taxation cases fit.
“During the 1970s and through the 1980s, the tax cases were hit and miss because the court was unsure how to handle them. But in 1989’s Cotton Petroleum case (authored by Stevens), the court placed the advantage squarely with the states and local governments. From then on, the court only took cases far out of step with its settled understanding. …”
Fletcher also believes Stevens would “have eviscerated tribal sovereign immunity long ago,” since he often has argued against any form of immunity, tribal, federal and state, for decades, to little or no avail.
Continue reading
The Indian Law Legacy of Justice Stevens
Justice Stevens’ retirement this summer allows us a chance to review his legacy in relation to federal Indian law and policy. Justice Stevens ascended to the Supreme Court as the sole appointee of President Ford in late 1975. He voted in exactly 100 cases related to Indian law and tribal interests during that period.
Loosely speaking, Justice Stevens is the sitting Justice most likely to support tribal interests in the last decade, but his voting record in the 1980s and 1990s was overwhelmingly opposed to tribal interests. His seeming reversal in this context is fairly remarkable.
Justice Stevens generally speaking favored tribal interests in treaty rights cases and statutory interpretation cases (less so), but was a serious opponent in tribal immunity and taxation cases.
The Stats
Overall voting record: 31 votes in favor of tribal interests; 63 votes against; and 7 votes unclassifiable.
Voting from 1976-1983: 14 votes in favor; 20 votes against; 1 unclassifiable
Voting from 1985-2000: 9 votes in favor; 41 votes against; 4 unclassifiable
Voting from 2001-2009: 8 votes in favor; 2 votes against; 1 unclassifiable
Important Indian Law Opinion Favoring Tribal Interests by Stevens, J.
Washington v. Fishing Vessel Assn (U.S. v. Washington) (1979): Justice Stevens headed a 6-3 majority upholding Judge Boldt’s 50-50 split in Indian/non-Indian fishing rights in the Stevens Treaties (what a coincidence!) case. Justice Stevens’ footnote suggesting that tribal fishers would be very unlikely to meet the 50 percent capacity reserved to them, later scholarship demonstrated, perhaps swayed enough of the Court to affirm Judge Boldt’s rule in pertinent part.
Well, that’s about it for significant opinions for the Court authored by Justice Stevens favoring tribal sovereignty.
Brendale: Justice Stevens authored the plurality opinion, joined only by one other Justice (O’Connor), splitting the baby in this tribal regulatory authority case. He held that the tribe had authority to assert land use regulatory authority over non-Indians and non-Indian lands in the “closed” part of the Colville Reservation, but not in the “open” part of the reservation. This confusing decision likely has no import after cases like Strate and Hicks.
Justice Stevens authored dissents in several cases favoring tribal sovereignty, especially in recent years.
Justice Stevens WILL Retire This Summer
From USA Today:
Supreme Court Justice John Paul Stevens, the court’s oldest member and leader of its liberal bloc, is retiring. President Barack Obama now has his second high court opening to fill.
Justice Stevens said Friday he will step down when the court finishes its work for the summer in late June or early July. He said he hopes his successor is confirmed “well in advance of the commencement of the court’s next term.”
His announcement had been hinted at for months. It comes 11 days before his 90th birthday.
Justice Stevens began signaling a possible retirement last summer when he hired just one of his usual complement of four law clerks for the next court term. He acknowledged in several interviews that he was contemplating stepping down and would certainly do so during Mr. Obama’s presidency.
The timing of his announcement leaves ample time for the White House to settle on a successor and Senate Democrats, who control 59 votes, to conduct confirmation hearings and a vote. Republicans have not ruled out an attempt to delay confirmation.
Legal News in Sunday’s NYTs
An article on Justice Stevens here.
And an article on attacks on law school clinics here.
Will Justice Stevens Soon Retire?
Adam Liptak at the New York Times thinks so (here).
Justice Stevens May Be Next Justice to Retire
From How Appealing:
“Justice Stevens slows his hiring at high court”:
Mark Sherman of The Associated Press has an article that begins, “Supreme Court Justice John Paul Stevens has hired fewer law clerks than usual, generating speculation that the leader of the court’s liberals will retire next year.”
Jeffrey Rosen on a “Judicial Apocalypse” if McCain Elected
From the New Republic:
During every presidential campaign for the last two decades, liberals have predicted an apocalypse in the Supreme Court. In their dire visions, as many as four justices are always about to retire, meaning that a Republican victory would turn the court radically to the right and lead to the certain overturning of Roe v. Wade.
In each of the past three elections, of course, these hyperbolic predictions have turned out to be wrong. Since 1996, Roe has been supported by a comfortable 6-3 majority, and the Court, controlled by two relatively moderate swing justices, Sandra Day O’Connor and now Anthony Kennedy, has remained fairly centrist. All of this had led some Court-watchers, including me, to conclude that the stakes for the Court in most presidential elections are less dire than many liberals fear.
Not this time. This year, for the first time since the New Deal era, a single election really does have the power to transform the Court–at the very moment that voters, rightly concerned about the tanking economy and the war in Iraq, are looking the other way. Given the fact that the older justices are liberal rather than conservative–and that the oldest, John Paul Stevens, is 88–it’s hard to deny that nominations by John McCain would change the Court far more dramatically than those by Barack Obama. An Obama victory would maintain the current balance of the Court, while a McCain Court could create a solid conservative majority.
What’s at stake is not only Roe v. Wade, but issues directly tied to the current concerns of the public: among them, Congress’s power to regulate the economy as well as limits on the president’s power to act unilaterally in the war on terrorism. Although McCain claims to favor justices who will defer to the political branches, the most likely Republican nominees are hardly consistent advocates of judicial deference. Voters who are hoping McCain will nominate relatively moderate judicial mavericks should think again.
Turtle Talk 