'WHILE AMERICAN democracy is imperfect," US Supreme Court Justice John Paul Stevens wrote in January, "few outside the majority of this court would have thought its flaws included a dearth of corporate money in politics." He pulls no punches, even with fellow members of the court, and his dissent in the Citizen United v Federal Election Commissionis a classic defence of the small man against the might of corporations. Not for the first time.
It would recall his blistering dissenting voice in the infamous Bush v Gore, which handed a deeply dubious presidential victory to the former: "Although we may never know with complete certainty the identity of the winner of this year's presidential election, the identity of the loser is perfectly clear. It is the nation's confidence in the judge as an impartial guardian of the rule of law."
The retirement of the 89-year-old liberal driving force in the majority-conservative supreme court – he served under seven presidents and three chief justices – leaves a gaping hole for President Obama to fill in only his second pick for the court. It is one of those defining moments of his presidency that will help set the direction of the court – and US politics – possibly for decades. In Citizen United, for example, the majority, at a stroke, transformed the country's electoral laws in favour of big money to the dismay of Democrats and Mr Obama, and provoked the latter into an unprecedented denunciation of the court in his State of the Union address.
The court currently has four justices who consistently vote on the left, four on the right, with Justice Anthony Kennedy, although mostly leaning to the right, often providing the deciding vote. That Mr Obama will appoint another liberal to the court is beyond doubt, and so its overall complexion and broad thrust is unlikely to change. It will certainly not move to the left. The real prospect, with the mid-term elections looming, that a Republican filibuster in the Senate may well incline the president towards a moderate centrist, even a swing-voter is alarming many of his supporters. One of the three front-runners has already been targeted by anti-abortion campaigners for her strong pro-choice views. Republicans say they will calibrate their fight to how liberal they perceive Mr Obama’s choice to be.
There’s a lot at stake – abortion rights, the death penalty, the power of the state, gay rights, affirmative action, gun control – and the president’s opportunity to leave a real legacy on the legal landscape. He should keep his nerve and go with his liberal heart.