A New Leader on Civil Liberties?

I have little to add to Adam's thorough and persuasive take on the Supreme Court's decision yesterday on the "material support" law. He does raise an interesting point, however, in noting that Justice Stevens joined the Court's five conservatives, raising questions about whether liberals might "want to rethink their characterization of Justice Stevens as the leader of the civil libertarian wing of the court." One could note that this is the second time this week that Stevens has joined with the Court's four most conservative members in a close case, although I don't think that the question of whether the National Labor Relations Board needed a quorum  to issue decisions, the other case in which he sided with conservatives, has an obvious ideological valence. The more relevant precedents are probably Stevens' dissents in the flag-burning cases. Stevens' reputation as a civil libertarian, at least in the context of the current Court, is generally well justified. But he's famously idiosyncratic, and something about the combination of nationalism and the First Amendment seems to instinctively compel him to side with the state.

What is encouraging about the case from a civil-libertarian perspective is the fact that Justice Sotomayor was among the three dissenters. If I were told that any of the Court's liberals had defected before seeing the vote lineup, I might have guessed Sotomayor, who after all was appointed by the administration that strongly defended the law in question. But even here Sotomayor continues to amass a very strong pro-civil-liberties record. Particularly since civil liberties was probably the area where Sotomayor's commitment to progressive values was most in question, this is a very good sign. I remain very skeptical about the Kagan pick, but Sotomayor's first term suggests that Obama has made at least one excellent choice for the Court.

--Scott Lemieux

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