How will the Supreme Court behave when he’s gone?

Tom Goldstein is a partner at Akin Gump Strauss Hauer & Feld, and lecturer at Stanford and Harvard Law Schools. He is the founder of SCOTUSblog. A version of this piece was originally posted there on April 18, 2010.

Supreme Court retirements inevitably produce much more coverage of process than substance. The press is dominated by political rather than legal reporters. Politics is also more familiar and therefore more accessible to the public than are court decisions.

The irony is that this attention to process is not very meaningful—at least at this stage, when there is no nominee. In comparison to a complicated piece of legislation, the President’s choice of a nominee is simultaneously pretty simple and largely private. Theoretically, likely Senate vote counts could be done for potential nominees, but that would itself require detailed study of the substance of the nominees’ positions, which requires significant effort. (The exception is a nominee like Elena Kagan, who has recently been before the Senate.) With relatively little to talk about until the nomination is announced, most coverage is just uninformed speculation about posturing by competing ideologues.

That does not mean that the public should just go about its business and ignore the nomination until the President makes his choice. There is valuable substantive analysis to be done. But it has to do with the Court’s jurisprudence. We can identify the areas of the law that could change as a result of Justice Stevens’ departure. With that information in hand, we can look at potential nominees and try to figure out how they would rule on those issues (a far more difficult project) so that we know what the effect of any particular nomination would be.

To be clear, this effort does not consider an important but largely unquantifiable piece of the retirement puzzle: Justice Stevens’ significant influence on the Court because of his seniority and his longstanding relationships with his colleagues. Rather, my focus is on the more concrete and absolute question of the instances in which Justice Stevens has been a part of five-to-four majorities. In those cases, if his successor instead agreed with the dissent, the result would have been different. Although those cases have already been decided, and the Court hesitates to go back and overrule itself, this analytical exercise is important because related questions with similar divisions among the Justices are likely to come up again.

I am also taking the short-term view, looking at only how Justice Stevens’ successor might vote differently from him in close cases. But that does not attempt to account for the effect on later changes in the Court. Even if President Obama’s nominee shared Stevens’ views precisely and thus caused no immediate shift in the Court’s jurisprudence, later retirements and appointments—in particular, the replacement of a conservative by a liberal in a second Obama term—could make the nominee to the “Stevens seat” extremely important.

My approach has one remaining big assumption, which I think is unavoidable. Almost all of the cases I consider were decided when Justice Souter was on the Court, and he was often in the five-Justice majority with Justice Stevens. Souter is of course now gone, replaced by Justice Sotomayor. So if she votes differently than he did—which will no doubt happen in some cases—the balance in the relevant cases will have already shifted. But because the evidence thus far suggests that Sotomayor will often come out the same way as Souter did, I think we can draw important conclusions from the close cases in which Justice Stevens provided a fifth vote for the majority.

With all those caveats, in this brutally long post, I try to address the most significant questions that come before the Supreme Court, with an eye to the issues on which the Stevens retirement could realistically produce a material change in the law. There are not many, but each is important. I’m sure as well that I’ll have updates to this analysis as I have the chance to reflect on it.

I. Summary of My Conclusions

The single largest body of cases in which Justice Stevens’ retirement could hypothetically shift the balance on the Supreme Court involves ideological issues on which the four most liberal Justices (Stevens, plus Souter, Ginsburg, and Breyer) joined with Justice Kennedy to create a majority. But although these cases involve very important issues, most of them are not very relevant to an examination of how the Court might shift because for that to occur Justice Stevens’ successor would have to be more conservative than not just him but also each of the other four members of the majority: Souter, Ginsburg, and Breyer, but also (the reasonably conservative) Kennedy. That is very unlikely.

An example illustrates the point. Those five Justices formed a majority to hold that the mentally retarded cannot be executed. Justice Stevens’ successor could take the opposite position and flip that result if s/he adopted a narrow reading of the Eighth Amendment’s prohibition on cruel and unusual punishment. But that is largely hypothetical: because views on questions like eligibility for the death penalty generally track ideology, it is unlikely that a Democratic appointment would move in fact the Court to the right in that area.

As a consequence, the appointment of Stevens’ successor by a Democratic President with a Democratic Senate is unlikely to shift the Court’s rulings on most important social issues, such as abortion, affirmative action, religion, and gay rights. On those questions, either the Court already is controlled by a conservative majority, or Stevens’ successor is unlikely to move the Court further to the right.

There nonetheless are a couple of issues on which the Court’s majority followed that just-cited line-up—the left plus Justice Kennedy—but for which a new appointment could realistically change the result because the issues do not necessarily track the traditional liberal-versus- conservative breakdown: executive power and preemption.

Thus, the Court has been narrowly divided, with the left prevailing, in cases relating to the rights of military detainees to have access to the federal courts, including particularly on federal habeas corpus. A nominee who had a substantially more robust view of presidential powers, or even greater confidence in this Administration’s approach to detainee questions, could shift the course of those rulings. In addition, other important presidential-power questions are headed towards the Supreme Court, including with respect to the NSA wiretapping program.

On preemption, Justice Stevens recently had significant success in securing a majority for two important opinions limiting the extent to which federal law trumps state law. His successor could take a broader view of the extent to which federal law controls, which would allow fewer state-law tort suits to proceed.

The next body of cases involves less traditional alignments among the Justices—generally, the Court’s left (Stevens, Ginsburg, and Souter) and right (Scalia and Thomas) wings joining together to form a five-Justice majority. This grouping has produced dramatic shifts in the Court’s Sixth Amendment jurisprudence relating to the jury trial right (which has significant effects on how prison sentences are determined) and a defendant’s right to confront witnesses against him. The recent departures of two members of that majority—first Souter and now Stevens—create a significant prospect that the tide of those cases will now be slowed and perhaps reversed.

It is also possible to identify areas of the law in which Justice Stevens’ departure may have an effect, even though he was not traditionally a part of a majority on the merits of a particular legal issue. Most prominent among these is campaign finance. Justices Stevens and Souter were the two strongest voices on the left resisting the trend towards the more aggressive application of the First Amendment to invalidate campaign finance laws, and the combined absence of their voices may speed the trend towards more decisions like Citizens United. Another example is the death penalty, where Justice Stevens (who late in his tenure concluded that the death penalty is unconstitutional) was relatively willing to provide a vote in favor of stays of execution. His replacement might be less willing to do so.

For ninety percent of readers, everything you’re going to want to know about this post appears above. The thousands of words that follow are the “show your work” sections, in which I provide considerably more detail on the hot-button issues that come before the Supreme Court. I try to address briefly almost all of the significant areas of current controversy that continue to arise in the Court’s docket. Simply to provide some organizing principle, I have broken the issues down according to whether they rise under the body of the Constitution, the Bill of Rights, or statutes.

II. Cases Involving the Articles of the Constitution

The first set of issues the Supreme Court confronts relates to the body of the Constitution. Cases under the Constitution generally require the Court to determine or define the power of another part of the government, such as the power of Congress or a State to pass a law.

Congressional Power is provided by Article I of the Constitution, which vests “[a]ll legislative Powers . . . in a Congress,” which has certain “Powers,” including (most importantly for the Supreme Court) the power “[t]o regulate Commerce . . . among the several States.” After some decisions suggesting that it might impose genuine limits on Congress’s power, the Supreme Court has declined to do so. Justice Stevens has been on the pro-Congressional power side of those rulings (and indeed wrote the leading modern opinion), but the margin of decision has been wide enough that his departure would not be significant. See, e.g., Raich v. Gonzales (2005) (joined by Justices Kennedy, Souter, Ginsburg, and Breyer; Justice Scalia concurred in the judgment).

Executive Power is provided by Article II of the Constitution, which vests “[t]he executive Power . . . in a President.” Recently, executive power issues have generally related to military detainees. Justice Stevens has consistently voted on the left, which has prevailed in several closely divided rulings. He wrote the opinion in the five-to-three Hamdan v. Rumsfeld (2006) decision (which we know would have been five-to-four absent the Chief Justice’s recusal), as well as the six-to-three Rasul v. Bush (2004) ruling (although there were only five votes for his opinion in that case). His retirement could be significant if his successor has a broader view of the President’s power, or a more limited take on the role of the courts, in this area. See, e.g., Hamdan v. Rumsfeld (2006); Boumediene v. Bush (2008). Although the current Administration is less likely to push the bounds of executive power with respect to detainee policy (including because of Congress’s own greater involvement in the field), other important issues are still headed to the Court—for example, litigation over the NSA wiretapping program.

Judicial Power is provided by Article III of the Constitution, which vests “the judicial Power . . . in one supreme Court, and in such inferior Courts as the Congress” creates. Judicial power issues most often relate to “standing,” which is the right to bring a lawsuit in light of the requirement of Article III that courts can only decide “Cases” and “Controversies,” as opposed to abstract disputes. In recent years, several difficult standing issues have been decided by a five-to-four vote on ideological grounds, with Justice Stevens on the losing side. See, e.g., Hein v. Freedom From Religion Foundation (2007). One significant exception was the “global warming” case in which Justice Kennedy joined Justice Stevens’ majority opinion to hold by a five-to-four majority that Massachusetts had standing to challenge the refusal of the Bush Administration’s EPA to regulate tailpipe emissions. Massachusetts v. EPA (2007). But generally speaking, access-to-courts questions like standing are ideological, so it is unlikely that Stevens’ successor would change the balance on these issues.

Separation of Powers is the division of responsibility between the three branches of government: Congress, the President, and the judiciary. The Court has decided separation-of-powers questions in the context of detainee issues, discussed above. Beyond that, the Court has long taken a flexible approach by a broad majority. See, e.g., Mistretta v. United States (1989); Clinton v. Jones (1997).

In sum, in cases that involve the body of the Constitution, Justice Stevens’ retirement realistically is only likely to affect questions of executive power, including with respect to detainee policy.

III. Cases Involving the Bill of Rights

The next set of issues relates to the Bill of Rights. First, a note about “incorporation”: Several constitutional amendments discussed below, including the First Amendment, literally apply to “Congress” rather than state and local governments. But the Supreme Court has ruled—with only a couple of exceptions not relevant here—that the same constitutional restrictions apply to state and local governments.

Speech is protected by the First Amendment which forbids a “law . . . abridging the freedom of speech.” Speech rulings are difficult to categorize because they arise in many diverse contexts, such as pornography, student expression, and anonymous commentary. Justice Stevens has written the majority opinion in several seminal free speech cases. See, e.g., United States v. National Treasury Employees Union (1995); NAACP v. Claiborne Hardware (1982); McIntyre v. Ohio Elections Commission (1995); Ladue v. Gilleo (1994). Generally speaking, however, traditional free speech cases do not involve five-to-four alignments with Justice Stevens in the majority.

Commercial Speech is a subcategory of free speech that involves advertising and similar expression. Commercial speech claims have often been resolved in the Supreme Court by narrow votes, but Justice Stevens voted on both sides of the issue. Compare 44 Liquormart v. Rhode Island (1996); United States v. United Foods (2001) (favoring such a claim) with Thompson v. Western States Medical Center (2002) and Glickman v. Wileman Bros. & Elliot (1997) (rejecting it). It is therefore difficult to predict the effect of the retirement on this area of the law.

Campaign Finance is a subcategory of free speech that involves financial campaign “contributions” to specific candidates and parties and other “expenditures” regarding candidates and issues. The momentum in the law is strongly in the direction of recognizing greater First Amendment limitations on campaign finance regulation. Those cases are often decided five-to-four, with Justice Stevens in the minority. See, e.g., Citizens United v. Federal Election Commission (2010). Importantly, Justices Stevens and Souter were the intellectual leaders of the left’s effort to sustain campaign finance regulation; they wrote most of the opinions upholding regulation when Justice O’Connor was on the Court (see, e.g., McConnell v. Federal Election Commission (2003)) and the principal dissents after she was replaced by Justice Alito (see, e.g., Citizens United, supra). As litigation pushes towards greater invalidation of campaign finance regulation, their departure may speed the shift towards recognizing a greater First Amendment right to participate in elections through campaign-related spending.

Once quasi-campaign finance case in which Justice Stevens was in a majority was the Caperton v. A.T. Massey Coal (2009) ruling setting due process constraints on contributions to judicial candidates. Stevens’ successor could take a narrower view of the role of the federal courts in this area, and at least limit Caperton’s reach. It is unlikely that Caperton will be overruled, if only because it has not yet proven to generate significant disruptive litigation.

Religion is addressed by the First Amendment, which forbids a “law respecting an establishment of religion, or prohibiting the free exercise thereof.” The first clause limits the government’s involvement with religion; the latter protects individuals’ own religious beliefs and activities. The Court has decided religion cases by narrow majorities—most notably the split-the-baby approach to the two Ten Commandments cases (compare McCreary County v. ACLU (2005) (invalidating display) with Van Orden v. Perry (2005) (upholding display)—with Justice Stevens in one case part of a majority to limit the relationship between government and religion. But Justice Alito’s replacement of Justice O’Connor likely has already moved the Court to the right on that question. In close religion cases, Justice Stevens is already in a dissenting position.

Gun Rights are protected by the Second Amendment, which provides that “the right of the people to keep and bear Arms, shall not be infringed.” The Supreme Court recently held that the Second Amendment protects a right to bear arms apart from service in a militia. The four more liberal Justices, including Stevens, dissented. See District of Columbia v. Heller (2008). The Court is considering this Term whether the Second Amendment restricts state and local gun laws; the answer will almost certainly be yes. McDonald v. City of Chicago (2010).

Privacy takes different forms in the Constitution. The “constitutional right to privacy” is protected by the Fourteenth Amendment, which is discussed below. Physical privacy—for example, in the home or walking down the street—is protected by the Fourth Amendment, which provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” The most significant trend in this area is the narrowing (and perhaps eventual elimination) of the “exclusionary rule” that requires the suppression of evidence gathered in violation of the Fourth Amendment. Results in Fourth Amendment cases have varied, although the left has occasionally won cases by a five-vote majority (e.g., Georgia v. Randolph (2006)), including in a recent important opinion by Justice Stevens (see Arizona v. Gant (2009), and Justice Kennedy has declined to provide a fifth vote for dramatically narrowing the exclusionary rule (Hudson v. Michigan (2006) (concurring opinion)). The law could move in a more conservative direction if Stevens were replaced by a justice who reads the Fourth Amendment more narrowly, but such a development is unlikely given that more liberal judges tend to have a relatively broad view of the Amendment’s privacy protections.

Property Rights are protected by the Fifth Amendment, which provides that “private property” shall not “be taken for public use, without just compensation.” The most (in)famous “takings” case read the “public use” requirement to broadly permit the government to condemn land for redevelopment. See Kelo v. City of New London (2005). In theory, a different Justice could make a difference, as the case was decided by a vote of five to four, with Justice Stevens writing for the majority. But in the years since that case was decided, two of the Justices most concerned about property rights (who were among the four dissenters)—Rehnquist and O’Connor—have left the Court, and it seems unlikely that their replacements—Roberts and Alito—have views on the issue that are as strong. So Stevens’ departure is unlikely to significantly affect the Court’s property rights jurisprudence. That said, Justice Stevens was one of the intellectual leaders in this area, authoring two significant opinions that construed property rights narrowly. See Kelo v. City of New London (2005); Brown v. Legal Foundation of Washington (2003).

Criminal Defendants’ Rights are protected in several parts of the Constitution. Most relevant, the Fifth Amendment provides that a person shall not “be subject for the same offense to be twice put in jeopardy of life or limb [the double jeopardy clause]; nor shall be compelled in any criminal case to be a witness against himself [the self-incrimination clause], nor be deprived of life, liberty, or property, without due process of law [the due process clause].” The Sixth Amendment furthermore guarantees a defendant the right to “a speedy and public trial, by an impartial jury; . . . [and] to be confronted with the witnesses against him.”

There recently have been close cases that involved the confrontation right, and Justice Stevens has been part of an unusual five-Justice majority favoring defendants, joined by Justices Ginsburg, Souter (with Justice Sotomayor now holding that seat), Scalia, and Thomas. See, e.g., Melendez-Diaz v. Massachusetts (2009). Stevens’ departure (together with the retirement of Justice Souter) very well could change the direction of these cases. That seems to be the obvious implication of the fact that a Democratic appointee—Justice Breyer—was in the dissent in both cases. I don’t think that it’s likely that the Court would undo all of its recent rulings expanding the confrontation right, but it could overturn the Melendez-Diaz decision relating to the admission of tests (such as tests showing that substances are illegal drugs) or otherwise halt the expansion of the confrontation right.

Another hotly contested aspect of the Sixth Amendment—which has produced the same unusual alignment of Justices just cited—is the right to a jury trial. Here, the five-member majority has issued several rulings that have revolutionized criminal sentencing, narrowing the power of federal judges (as opposed to juries) to find facts that may dramatically increase a sentence. Justice Stevens has been particularly influential, having written three of the seminal opinions. Apprendi v. New Jersey (2000); United States v. Booker (2005); Gall v. United States (2007). As with the confrontation right, the retirements of Justices Stevens and Souter could significantly shift this area of the law.

I doubt that the Court would want to go through the process of undoing the massive sentencing revolution it triggered with this line of cases. The original process was wrenching; the overruling of those rulings would be equally so. But it is certainly a possibility.

Effective Defense Counsel is provided by the Sixth Amendment, which gives a criminal defendant the right “to have the Assistance of Counsel for his defence.” These claims often arise in death penalty cases, when it is alleged that the defendant’s counsel failed, for example, to investigate the crime or circumstances that would have made it less likely that the jury would impose a death sentence. Particularly since Justice O’Connor’s retirement, close cases in this area have tended to go in favor of the government, with Justice Stevens in dissent.

Death Penalty questions generally arise under the Eighth Amendment, which provides that “cruel and unusual punishments” shall not be “inflicted.” There are many different issues in this area. Two principal categories are (i) claims that certain classes of defendants are categorically ineligible for the death penalty (for example, the mentally retarded, individuals who committed the offense while minors, and persons who committed non-capital crimes); and (ii) claims that the death penalty should not have been imposed on the particular facts of the case. In the first category, Justice Stevens has been a part of five-Justice majorities in several significant cases, and authored the Court’s opinion holding that the execution of the mentally retarded is unconstitutional. See Kennedy v. Louisiana (2008); Roper v. Simmons (2005); Atkins v. Virginia (2002). It is unlikely, however, that Justice Stevens’ successor would vote to expand eligibility for the death penalty.

Towards the end of his tenure, Justice Stevens concluded that the death penalty is unconstitutional; no other sitting member of the Court shares that view, which is likely to no longer be represented among the Justices. Baze v. Rees (2008) (Stevens, J., concurring in the judgment). More significant, Justice Stevens is (in no small part because of his now-strong views about the death penalty) a reliable vote to secure a stay of an execution. Justice Souter also had a relatively sympathetic approach to such requests. Their combined departure may make it materially more difficult to secure orders from the Court halting executions.

States’ Rights are addressed by the Tenth Amendment, which provides that “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Also, the Eleventh Amendment protects states’ sovereign immunity from suit, providing that the federal judicial power does not “extend to any suit . . . against one of the United States by Citizens of another State.” The Court decided a number of cases in favor of states’ rights by a five-to-four majority, with Justice Stevens in dissent, but with the departure of William Rehnquist and Sandra Day O’Connor it has shown less interest in the area.

Before moving on to an analysis of the Fourteenth Amendment, a note about the “constitutional right to privacy” and “substantive due process”: the Constitution does not discuss abortion or certain other contentious legal issues relating to personal autonomy and fairness. In a hotly contested series of decisions, the Supreme Court has located those rights in the Bill of Rights broadly and in particular in the Fourteenth Amendment’s requirement that individuals not be deprived of “liberty” without “due process,” which the Court has said confers “substantive” protections.

Another note about the Fourteenth Amendment: Both it and the Fifth Amendment provide that individuals have a right to “due process.” The Fifth Amendment applies to the federal government; the Fourteenth Amendment applies to states and localities. Because most cases are brought against the latter, I discuss the Fourteenth Amendment to make things simpler.

Abortion is addressed by the Supreme Court as a question of substantive due process and the constitutional right to privacy. The Court is closely divided on abortion. It appears likely that there are currently five votes to narrow the abortion right materially, but not enough votes to completely overrule Roe v. Wade because Justice Kennedy has not disavowed his position that the Constitution does recognize some form of abortion right. Compare Gonzales v. Carhart (2007) (upholding the federal partial-birth abortion statute and narrowly reading the right) with Planned Parenthood v. Casey (1992) (plurality opinion) (reaffirming but narrowing Roe). Justice Stevens has favored abortion rights. Theoretically, a successor who believed that Roe should be overruled could alter the balance on the Court on that issue, but it is essentially unimaginable that President Obama would appoint such a nominee.

Gay Rights issues arise under two constitutional headings. One is substantive due process; the other is the Fourteenth Amendment’s requirement that no state “deny to any person within its jurisdiction the equal protection of the laws.” The Court’s modern decisions in this area—invalidating state sodomy laws and a referendum that uniquely restricted anti-discrimination protections for homosexuals—were both decided by a vote of six to three, with Justice Stevens in the majority. See Lawrence v. Texas (2003); Romer v. Evans (1996)). However, the Court has not considered these issues since one member of that majority (Sandra Day O’Connor) was replaced by Justice Alito. Thus, although it is very unlikely, Justice Stevens’ departure could tilt the Court away from the recognition of gay rights. It nonetheless remains true that Justice Stevens’ successor could play a significant role on the next major issue arising in this area: gay marriage. If the challenge to California’s Proposition 8 now pending in the trial court has a chance of prevailing in the Supreme Court, it is by a whisker at best, and Justice Stevens would have been among the Justices most willing to vote in favor of such a claim.

Punitive Damages, although very different from abortion and gay rights, implicate the same constitutional provision. The Supreme Court has recognized a due process right not to be subject to extreme and unanticipated money damage awards. This area of the law is somewhat unstable and uncertain. Three Justices who favored the Court’s current doctrine (Stevens, O’Connor, and Souter) have retired, while three who solidly oppose it (Scalia, Thomas, and Ginsburg) remain on the Court. It is therefore impossible to tell whether Stevens’ successor might tip the balance in this area of the law.

Affirmative Action and other issues relating to race (most of which are discussed below in the statutory section) arise under the just-quoted Equal Protection Clause of the Fourteenth Amendment. On affirmative action and similar issues (such as the use of race in school assignments), the Court has generally been hostile to race-based government decision making in five-to-four rulings in which Justice Stevens has been in dissent. See, e.g., Ricci v. DeStefano (2009). But because Justice Kennedy has declined to embrace a truly “color blind” interpretation of the Constitution (see, e.g., Parents Involved in Community Schools v. Seattle School District No. 1 (2007) (concurring opinion)), it is (as with the discussion of abortion above), theoretically possible—but as a practical matter exceptionally unlikely—that Justice Stevens’ replacement would move the Court significantly to the right.

In sum, with respect to issues arising under the Bill of Rights, Justice Stevens’ departure is most likely to make a difference in cases involving the Sixth Amendment.

IV. Non-Constitutional Cases

The next set of issues that the Supreme Court confronts involves interpreting federal statutes that Congress adopts (and in one instance, a court rule), as well as issues relating to Native American tribes.

Antitrust is the field of law encouraging business competition. The principal statute is the Sherman Act, which prohibits “[e]very combination . . . or conspiracy[] in restraint of trade” (Section 1) and makes it illegal to “monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of [] trade or commerce” (Section 2). The Court’s decisions in this field have tended to narrow the application of the antitrust laws by relatively wide majorities.

Habeas Corpus generally involves a court’s power to consider the legality of a criminal conviction after the completion of ordinary appeals, although habeas corpus questions also arise in high-profile cases as the procedural mechanism for challenging military detentions. Article III of the Constitution provides that generally “[t]he privilege of the Writ of Habeas Corpus shall not be suspended.” But the details are spelled out in a complicated statute, the Antiterrorism and Effective Death Penalty Act (AEDPA), through which Congress has repeatedly narrowed habeas corpus. Certain issues—such as the rigorousness of the requirement that Supreme Court precedent be well established before serving as a basis for habeas corpus relief—have generated broad majorities in the Court. Other questions have created ideological divisions. Irregularly, Justice Stevens has been a member of five-Justice majorities that have included Justice Kennedy, but it is unlikely that his successor would shift the Court’s balance on those questions. See, e.g., Abdul-Kabir v. Quarterman (2007).

Racial Discrimination issues can arise under the Fourteenth Amendment, as discussed above, but most often involve statutory claims, including particularly claims of employment discrimination. The principal statute is Title VII of the Civil Rights Act of 1964, which forbids covered employers from discriminating on the basis of race, color, religion, sex or national origin. The Supreme Court has had surprisingly few straightforward Title VII race-discrimination claims over the past ten years. It is unclear how close the cases would be. But in general it is unlikely that President Obama would nominate someone who would move the Court materially to the right on such a central civil rights question.

Gender Discrimination is like racial discrimination: the issue can arise under the Fourteenth Amendment, but most often involves statutory claims. In addition to the employment discrimination provisions of Title VII, another important statute is Title IX of the Education Amendments of 1972, which provides that no person “shall, on the basis of sex,” be subject to discrimination in “any education program or activity receiving Federal financial assistance.” Sandra Day O’Connor was generally the swing vote on gender discrimination claims. See, e.g., Jackson v. Birmingham Bd. of Educ. (2005). Recent experience indicates that her replacement by the more conservative Justice Alito will likely mean that Justice Stevens and his successor would be on the losing end of five-to-four cases. See, e.g., AT&T Corp. v. Hulteen (2009); Ledbetter v. Goodyear Tire & Rubber Co. (2007).

Age Discrimination is addressed by the Age Discrimination in Employment Act (ADEA), which makes age discrimination against employees over the age of forty presumptively unlawful. In general, age discrimination claims have not fared well in the Supreme Court. Justice Stevens was, however, part of a five-Justice majority which held that the employer can be liable under the ADEA for unintentional age discrimination—so-called “disparate impact” claims. Smith v. City of Jackson (2005). Justice Stevens was also a member of a five-Justice majority that upheld an employer disability benefit plan which awarded higher benefits to workers injured before retirement age. Kentucky Retirement Systems v. EEOC (2008). Although his successor might find the statute violated in that circumstance, it is not a particularly significant area of the law.

Disability Discrimination claims are presented under the Americans With Disabilities Act (ADA), which prohibits discrimination (i) in employment by a covered employer against a qualified person with disability (Title I); (ii) by public entities (Title II); and (iii) in public accommodations (Title III). The Court has had very few ADA cases: it adopted a middle-ground reading in applying the Act to cruise ships by a five-to-four majority composed of the left plus Justice Kennedy (Spector v. Norwegian Cruise Lines (2005)) and it held that states could be sued for money damages under a provision of the ADA in an opinion by Stevens for five Justices that included Sandra Day O’Connor (Tennessee v. Lane (2004)). It is extremely unlikely that an Obama appointee would take a materially narrower view of the ADA.

Environmental Law issues can arise under a number of different statutes that address different forms of pollution (for example, the Clean Air Act and Clean Water Act) at different sites (for example, hazardous waste dumps). In general, recent environmental cases have been closely fought and decided largely along ideological lines, with the left in dissent. See, e.g., Coeur Alaska v. Southeast Alaska Conservation Council (2009) (6-3; environmental claim fails); Entergy Corp. v. Riverkeeper, Inc. (2009) (5-4; environmental claim fails); National Ass’n of Home Builders v. Defenders of Wildlife (2007) (5-4; environmental claim fails).

Voting Rights issues can arise under the Fourteenth Amendment, which the Supreme Court has applied to claims of racial discrimination and unequal distribution of voting power. But these issues most often arise under the Voting Rights Act of 1965. The leading provisions are Section 2, which prohibits electoral systems with discriminatory effects, and Section 5, which requires covered jurisdictions to receive federal permission before changing their voting systems. Recently, in close cases under the act, Justice Stevens has been in dissent. At oral argument in Northwest Austin Mun. Util. Dist. No. One v. Holder (2009), it seemed that the Court’s conservatives were seriously considering invalidating the current version of Section 5 as unconstitutional. The Court divided on ideological lines, with the left in dissent, on whether the Act requires the recognition of minority influence districts. Bartlett v. Strickland (2009). On the other hand, Justice Kennedy joined the left to invalidate changes to a Latino district in LULAC v. Perry (2006). One area of voting rights law that Stevens’ retirement could implicate is that Justice Kennedy has in principle joined with the left to recognize the plausibility of a “partisan gerrymandering” claim—i.e., that district lines were unlawfully drawn to favor a particular political party—although that recognition has not had any practical effect thus far because he has not identified a sufficiently extreme district to be unlawful. Stevens’ successor could reject such a claim outright, and close the door to such a possibility. But generally speaking, it is very unlikely that a Democratic appointee would move the Court to the right on voting rights issues.

Preemption is the principle that federal law trumps state law. It is grounded in the Supremacy Clause of Article VI of the Constitution, which provides that “[t]he Constitution, and the Laws of the United States . . . and all Treaties . . . shall be the supreme Law of the Land.” Although formally a constitutional issue, preemption questions most often involve the construction of a federal statute (or sometimes a regulation) to determine whether it precludes a state (or local) law. The Court’s preemption decisions have not pointed in a consistent direction and have tended to turn on their particular context. Two significant recent decisions have ruled against preemption claims, however, and Justice Stevens authored the majority opinion in both. One was decided six to three, but only five members of the Court joined Justice Stevens’ opinion. Wyeth v. Levine (2009). The other was five-to-four. Altria Group v. Good (2008). Preemption is thus an important area of the law that could shift with Justice Stevens’ departure towards finding greater federal preemption and thus reduced state authority. The principal consequence would be to allow fewer state tort suits to proceed.

Substantive Criminal Law involves determining whether particular conduct is a crime under any of many dozens of different criminal statutes. The Court’s cases are too varied to categorize and depend on particular circumstances. Generally speaking, Justice Stevens was relatively more sympathetic to claims of criminal defendants, but relatively rarely in cases that produced a narrow, non-ideological majority in favor of the defendant. This field does contain, however, a rare case in which Justice Stevens was a member of a five-Justice majority, of which he took the most conservative position. See United States v. Santos (2008) (Stevens, J., concurring in the judgment) (concluding that “proceeds” under the money laundering statute means “profits” in some cases, but not all). His successor could move the Court to the left in such a case, but the issue is not significant.

Criminal Sentencing issues can arise in many contexts. The Sixth Amendment right to a jury trial, which is discussed above, has significant implications for sentencing. Other sentencing issues generally involve the interpretation of federal laws—for example, statutes providing for mandatory minimum sentences. This category does include a rare (and not terribly important) case in which Justice Stevens joined four more conservative colleagues to form a majority, rejecting a defendant’s claim of a right to notice of a particular sentence. See Irizarry v. United States (2008). But in general, statutory sentencing cases have not consistently involved narrow five-to-four majorities.

Pleading Standards are the rules governing the amount of detail that must be included in a “complaint” in order to pursue a civil lawsuit in federal court. That standard is governed by Federal Rule of Civil Procedure 8, which requires “a short and plain statement of the claim showing that the pleader is entitled to relief.” The Court has recently applied more stringent pleading requirements as a broad requirement in a five-to-four ruling in which Justice Stevens joined a dissenting opinion by Justice Souter. Ashcroft v. Iqbal (2009).

Native American issues arise under federal statutes and also principles of tribal sovereign immunity. The current Court has generally ruled against the Tribes, although Stevens’ departure will make their position even more tenuous because he was among the most likely to vote in their favor.

In sum, in statutory cases, Justice Stevens’ retirement is most likely to have an effect on preemption claims.

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