We Know Stevens, But What Do We Really Know About Kagan?

Deborah O'Malley /

Many who advocate for the appointment of originalist judges believe that the Court will not be worse off when Justice John Paul Stevens is replaced.  After all, who could possibly be more of a liberal activist than the leader of the Court’s liberal bloc, Justice Stevens?

This mode of thinking is grossly mistaken.

Though Justice Stevens was certainly no originalist, there were some areas where his legal analysis was reasonable: certain elements of criminal law and election law, for example.

While Stevens was disappointing in Eighth Amendment cases, he could be relied upon for good opinions in Fifth Amendment Search and Seizure cases.  As Jack Park has demonstrated, Justice Stevens was reasonable in giving proper discretion to law enforcement officials in the arrest stage of criminal procedure.