I want to follow up on John's very perceptive insight about Justice Stevens' opinions in criminal cases.
I think those opinions -- sometimes holding together a fragile majority (as in the Gant case last Term) and more often in dissent -- are an important and undervalued part of the Justice's legacy. For many years, Stevens has been the Justice most often sympathetic to defendants' arguments, especially in criminal procedure cases.
Just this Term, in the two Miranda cases decided so far, he has been the only Justice to vote for a fuller understanding of Miranda protections in one, and one of two dissenters in the other. And even in dissent, Justice Stevens' opinions played an important role, ensuring that a more defendant-protective perspective, driven in part by concerns about the potential for race discrimination in law enforcement, remained a part of the legal discussion.
When people predict that Justice Stevens' replacement will leave the Court unchanged ideologically, I wonder whether they are including the Court's criminal docket in that assessment. I do not take for granted that a new Justice will be as prepared as Justice Stevens was to take a skeptical look at the exercise of government power in criminal cases. And if not, then this is one area in which Justice Stevens' absence will be felt especially keenly. — Pamela Harris