President Barack Obama should have the courage to try to rebuild the liberal wing of the Supreme Court but he probably won’t, free speech attorney Marjorie Heins told Raw Story in an exclusive interview conducted Saturday.
When Obama appoints a new Justice to replace John Paul Stevens, “that Justice wouldn’t make a dent in the 5 justice right-wing majority that ruled in Citizens United,” Heins said.
Heins, founder of Free Expression Policy Project, and longtime director of the ACLU arts censorship project, pointed out Anthony Kennedy’s going to be the swing Justice regardless of whom Obama appoints to replace Stevens. “Obama has had a record of being very slow with judicial appointments below the Supreme Court level,” said Heins. “And that’s of course where most cases are decided and that’s a real problem. At the Supreme Court level, he won’t be slow, but he’ll probably be very cautious.”
“In the days when we had Black and Douglas and Brennan and Marshall there really was a liberal wing on the Supreme Court,” she continued. “And now what we really have is a right wing and a moderate wing, we don’t really have a liberal wing anymore. Or liberalism has moved so far to the right that we can’t recognize it. Obama should have the courage to try to rebuild the liberal wing, but he probably won’t because he doesn’t want to create any more controversy and opposition than necessary in Congress.”
This weekend Justice John Paul Stevens confirmed that he plans to retire during Obama’s first term as president. Sen. Arlen Specter (D-Pa) told Fox News Sunday he hopes Stevens waits a year, to avoid gridlock while Senate business is so backed up due to battles over health care legislation.
“I think we need someone who will step into Justice Stevens’ shoes, who will be very tough on the issues of executive power,” Specter said. “A federal court this past week declared the warrantless wiretapping unconstitutional. I think we need the kind of balance that Justice Stevens has provided to offset the majority on the court which is in favor of executive power.”
Justice Stevens, in his passionate Citizens United v. FEC dissent, wrote of the majority’s threat to democracy, because one of the fundamentals of free speech is that all, not just the richest or most powerful, need to be heard. Vast majorities of Americans who identify as members of each of the major political parties are unhappy with the Supreme Court’s decision, which fundamentally changes campaign finance laws in the United States.
In a detailed article posted to the Free Expression Policy Project website immediately after the Supreme Court decision, Heins highlighted Stevens’ description of the majority’s argument as “aggressive judicial activism” suffering from “glittering generality.”
Heins guesses he wrote the Citizens United dissent in the way he did because he wants it to be remembered. “Stevens is about to turn ninety and still plays tennis,” she said, laughing. “He’s incredible. One of the ironies of course is Stevens was the author of Pacifica, the case that allows the FCC to censor what it thinks is indecent on the airwaves.”
Stevens is considered a first amendment champion now, but in 1978, just after he was appointed to the court, Heins says, “He didn’t get it. He wrote this Pacifica decision which he ought to apologize for some day, and perhaps he even will. But certainly in Citizens United he’s trying to make a very strong statement against this kind of — beyond judicial activism — it’s very unusual what the Supreme Court did.”
The key swing vote on the Supreme Court used to be Justice O’Connor, Heins points out, but now it is Kennedy. “Kennedy is usually pretty good on first amendment issues although in this case his interpretation was ‘oh the first amendment doesn’t allow us to make distinctions between speakers.’ That’s what Stevens was referring to as a ‘glittering generality.’ Of course government can make distinctions between speakers! Corporations are not individuals and they don’t have the same rights as individuals, but Kennedy did not agree with that.”
Huffington Post has a slideshow of possible nominees to fill Stevens’ seat once he leaves.
This audio is from Gavin Dahl, uploaded April 4, 2010.