Legal Briefing: The Impact of Justice Stevens's Replacement


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Possible Impacts of Stevens's Retirement

I haven't written on the retirement of Supreme Court Justice John Paul Stevens because so many have done such a great job of lionizing him, plus I have nothing to add to the who-will-replace-him gossip game. But Tom Goldstein's interesting story on SCOTUSblog looks at the potential impact of his replacement on the Court's decision-making.

In short, Goldstein argues that in most situations, including most 5-4 decisions, the replacement will have little impact as s/he is unlikely to be to the right of Justice Kennedy, the swing vote in those cases.

Nonetheless, Goldstein identifies two types of cases where the liberals-plus-Kennedy majority might not hold with a Stevens replacement: executive power and preemption cases. In Sixth Amendment cases, particularly the right to a trial by jury, Stevens was part of an unusual majority -- Stevens, Souter and Ginsberg plus Scalia and Thomas -- which means that if his replacement differs significantly with Stevens on those issues, the majority may not hold. (Justice Sotomayor's impact, as Justice Souter's replacement, could be just as powerful on those cases.) Finally, although Stevens wasn't in the majority, he and Souter were the fiercest opponents to using the First Amendment to limit campaign finance reform, and perhaps his replacement won't share that view.

On at least executive power, liberals reportedly worry that alleged front-runner Elena Kagan is too conservative, meaning too pro-state over the individual. Not everyone agrees with that assessment, but Goldstein's piece highlights the fact that the eventual nominee's view on the issue is very significant.

Round-Up: Next Wave of Goldman Stories

Here at DailyFinance we've got fresh coverage of the impact of the Goldman Sachs (GS) fraud case on the stock market bull run; the impact on Goldman itself; a profile of the two Paulsons, John and Hank; and James Altucher points out interesting questions by Felix Salmon and moral condemnation from Mario Bartiromo. And there's more to come. Elsewhere, the Wall Street Journal's law bloghas a profile of the judge assigned to the Goldman case (interesting trivia: she prosecuted the Mob and oversaw Bernard Ebbers's WorldCom trial); the New York Times reports that Goldman's top management was closely following the bank's mortgage positioning at the time the deal in question was done, and that top management generally shared Paulson's negative view of the mortgage market; and the Wall Street Journal confirms the Securities and Exchange Commission is scrutinizing other deals.

Getting Al Capone on Tax Fraud, Blackwater Edition?

Remember how the famous mobster Al Capone was imprisoned for tax fraud because the government was unable to convict him of the brutal mob crimes he allegedly committed? Well, five executives of the former Blackwater firm have been indicted on weapons charges, following the dismissal of charges against five Blackwater security guards who allegedly wrongfully killed 17 Iraqi civilians.