Kent law prof says court ideology may not shift

A change in Supreme Court personnel invariably alters the dynamics of the court, but it doesn't have to affect its ideological balance, says Carolyn Shapiro, assistant professor at Chicago's Kent College of Law.

Shapiro, who served as a law clerk for Justice Stephen Breyer, says that when Justice John Paul Stevens retires later this year, he may be replaced by someone with similar views to his own.

"Justice Stevens is on the liberal side and President Obama is likely to appoint someone liberal," says Shapiro.

But his departure may affect the court in other ways, she adds. As the court's senior member, Stevens has assignment power, she notes, which means that in cases where Chief Justice John Roberts and Stevens disagree, Roberts determines which justice on his side will write the opinion while Stevens determines which justice among those who agree with him pens the opinion.

Typically, it's the justice with the strongest opinion, says Shapiro, but sometimes, the opinion might be assigned to a swing justice to keep him or her on board. In any case, the responsibility is considerable.

Shapiro, who met Stevens several times during her clerkship, praised both his judicial acumen and his personality.

"He is utterly charming, completely delightful, and really down-to-earth," she says, before recounting a story about the unassuming jurist who reportedly identifies himself to his Florida neighbors as John Stevens, a Washington lawyer.

While the nation's viewpoint has shifted over the last 30-plus years, Stevens' has not, she says.

"Many of the positions he takes are the same positions he would likely have taken closer to the beginning (of his career)," she says.

Some court watchers believe Stevens has come into his own over the last 15 years. To that end, Shapiro cites his majority opinion in Hamdan v. Rumsfeld (2006) which held that the military commissions established to try detainees at Guantanamo Bay violated the Uniform Code of Military Justice and the Geneva Conventions and his majority opinion in Rasul v. Bush (2004) that the U.S. Judiciary could hear appeals from Guantanamo Bay detainees challenging the constitutionality of their detention.

Shapiro believes Stevens' legacy will be his commitment to the court. Some justices, like Roberts, Antonin Scalia and William Rehnquist "have a pretty good agenda of where they want to steer the law," says Shapiro. "I don't think Justice Stevens has that approach."

"I think he has a real commitment to the court as an institution," she says. "I hope that legacy continues."