By John M. Rogitz

It has been widely reported that Supreme Court Justice John Paul Stevens will soon announce whether he plans to retire after the Supreme Court term ends in June.  The Court’s “leader of the liberal wing,” as the New York Times put it, will turn 90 this April.

Adding to the speculation, Justice Stevens has curiously only hired one law clerk for the current term.  Justices typically hire at least three, so Justice Stevens’ lone clerk must be pretty overworked by this point.  Similarly, Justice Souter only hired one clerk in his final term before retiring last year, and a trend is beginning to emerge that a decrease in the number of judicial clerks a justice hires for a given term may signal a pending retirement.

Supreme Court appointments could be one of President Obama’s longest lasting legacies.  And yes, that takes in to account health care, possible immigration reform and opening up the Atlantic shelf to off-shore drilling.  After all, a Supreme Court justice may sit on the bench for twenty or thirty years.  If you’re a left-leaning judicial activist, that’s a long career in policy making that not even many Congressmen could rival.

For example, Slick Willie’s two Supreme Court appointments are the only legacy remaining from the Clinton Administration.  Welfare reform?  Gone with the passing of Obamacare.  The economy?  In the tank.  But his appointments of Justices Breyer and Ginsberg to the bench are still having a critical impact on America more than a decade later.

So what’s the big deal?  President Obama will just replace one liberal justice with another, right?  Well if Justice Stevens does retire when the Court adjourns in a few months, there is a slight chance that Senate Republicans can delay a new justice’s confirmation until after the November elections.  Justice Sotomayor’s confirmation hearing took place last summer, but a third of all Senators in Congress will be hitting the campaign trail hard during that time this year.

Even if the Senate did rush back to Washington over the summer, most Democrats who would confirm a radical Obama appointee have already given plenty of controversial votes leading up to the midterm elections.  It’s hard to believe Democrats would launch another campaign right before they get wiped slick at the ballot box.  One can hope they’d only confirm a judicial centrist who might, on rare occasion, show some restraint like Justice Kennedy.

This is all important because of the constitutional challenges many of President Obama’s legislative victories will encounter in the coming years, including his terrorism policies and the individual mandate.  To fully appreciate the impact that judicial activism has on our separation of powers, one need only look to an interview Clinton appointee Justice Breyer gave to the AP this week.

In his interview, Justice Breyer tried to rationalize the use of international law and international norms when deciding U.S. constitutional issues by saying, “If I see something written by a man or a woman who has a job like mine in another country, and who is interpreting a document somewhat like mine and who in fact has a problem in front of the court somewhat like mine, why can’t I read it, see what they’ve done? I might learn something.”

It’s hard to believe that one of the most knowledgeable lawyers in the entire country would say that the U.S. Constitution is even remotely similar to any other founding document in the world.  While most modern countries have constitutions that are hundreds if not thousands of pages long, our Founders created the most prosperous and successful society this planet has ever seen in only a few pages.

If you buy in to judicial restraint – that the judiciary should only say what the law is, not what it should be – then Justice Breyer’s comments are particularly troubling.  When a judge interprets a law, he or she should look to the intent of the legislative body back when it created the law.  Who cares what France or Britain thinks?  Their legislatures did not enact our laws.

But if you buy in to judicial activism, judges don’t need to discern what democracy intended when enacting a particular law. They’re free to decide on their own what the law should mean.  That is the judicial philosophy that Justice Stevens represents and that President Obama will try to perpetuate.  I’m not so sure the current Senate is ready to confirm an exceedingly activist appointee, and the new Senate definitely won’t be.  Let’s just hope Justice Stevens doesn’t retire until next year instead.

COPYRIGHT 2010 JOHN M. ROGITZ