The ACLU, with a few rare, exceptions, does not take support or oppose judicial nominees, so you are not going to hear too much from us about Justice John Paul Stevens' potential successors. But, Justice Stevens' announcement today is certainly a good occasion to briefly consider his legacy. Whoever his successor is, they have a lot to live up to.
His career spanned 34 years, and 7 Presidents, but for many civil libertarians, it was two of his relatively recent opinions that earned our admiration. In the 2003 term, the Supreme Court considered the case of Rasul v. Bush, which was originally a habeas corpus case brought to challenge the legality of confinement at Guantanamo. The trial court dismissed the case, holding that the U.S. Naval base at Guantanamo was not a U.S. territory and so U.S. courts had no jurisdiction.
The appeals court affirmed, but the Supreme Court reversed, in a decision authored by Justice Stevens. He concluded that opinion by saying, "What is presently at stake is only whether the federal courts have jurisdiction to determine the legality of the Executive’s potentially indefinite detention of individuals who claim to be wholly innocent of wrongdoing. Answering that question in the affirmative, we reverse the judgment of the Court of Appeals and remand for the District Court to consider in the first instance the merits of petitioners’ claims." Looking at it now, almost 6 years later, it really doesn't seem like much, but I can still remember at the time, when almost everyone else in government seemed perfectly comfortable with the idea that the President could decide which rules to follow and which rules to ignore, how thrilling that passage was. The Courts were not going to be shut out of the process of determining the legality of the war on terror--the role they were, in fact, designed to play.
Then, in 2006, the Court dealt another significant defeat to the administration, when it determined that the military commissions set up for Guantanamo under the Detainee Treatment Act were legally inadequate because they violated the Uniform Code of Military Justice and Common Article 3 of the Geneva Conventions. In the case of Hamdan v. Rumsfeld, the Court again held that the rule of law covered everyone, and also that signed and ratified treaties are a binding source of law.
I hope that none of us will ever see another period of American history where so much of the government gives up on the rule of law. But, if we do, hopefully there will be people around like Justice Stevens to hold the line.