Feb. 21
USA:
With Longevity on Court, Stevens's Center-Left Influence Has Grown
One day last summer, an unusual baseball practice took place at Bluemont
Park in Arlington. A white-haired gentleman in owlish glasses tossed one
pitch after another to a female catcher half his age, trying to hit the
strike zone.
They were Supreme Court Justice John Paul Stevens, 85, and his daughter
Susan Mullen, 42 -- getting ready for Sept. 14, when Stevens was to throw
out the ceremonial 1st pitch at Wrigley Field, home of his beloved Chicago
Cubs.
After weeks of warm-ups with his daughter and others, Stevens took the
mound at Wrigley -- and did not blow his big moment. His fastball came in
high and only a bit wide of the plate.
"It was a thrill for him, an absolute thrill," Mullen said. "It was more
the little boy in him than the Supreme Court justice."
Born in Chicago on April 20, 1920, Stevens has not been a little boy for
many years. As of Jan. 9, he is the third-oldest person ever to serve on
the high court, trailing only Oliver Wendell Holmes Jr. and Roger B.
Taney. But he shows no sign of retiring and remains almost as vigorous as
he was when President Gerald R. Ford, a Republican, appointed him in 1975.
Stevens's remarkable staying power has been good for liberals. At a time
of conservative ascendancy on the court, he anchors a four-justice
center-left bloc that would probably shrink to three if President Bush
could appoint his successor. After the confirmation of Justice Samuel A.
Alito Jr. to replace Sandra Day O'Connor, the liberal radio network Air
America began playing "Hang On Stevens," a parody of the 1960s hit "Hang
On Sloopy." The song implores: "Just wait until Bush leaves before you
resign."
If anything, Stevens's influence has grown in recent years. He has a knack
for building coalitions across ideological lines, and he makes shrewd use
of his prerogatives as the senior associate justice. It is largely because
of him that a court with seven Republican-appointed members, and nominally
headed by a conservative, Chief Justice William H. Rehnquist, produced a
string of relatively liberal results in recent cases.
In the past half-decade, the court has upheld affirmative action in higher
education; approved a federal campaign finance law; abolished the death
penalty for minors and the mentally retarded; rejected key claims of the
property-rights movement; and given suspected terrorists held at the U.S.
military prison at Guantanamo Bay, Cuba, access to federal court.
In each of those decisions, Rehnquist dissented, joined by fellow
conservatives Antonin Scalia and Clarence Thomas -- while Stevens, as the
senior justice in the majority, either wrote the court's opinion or picked
the justice who did.
"He's a remarkable figure," said Dennis Hutchinson, a law professor and
Supreme Court historian at the University of Chicago. "If you looked at
his 1st 3 or 4 years on the court, you'd say he was a quirky
middle-of-the-roader with no vision and not interested in playing the
game. But 30 years later, he's moved into a very influential position. On
a court with no true liberals in the '60s sense of the word, he's gotten
as much out of the court in terms of left-wing results as anyone could."
Early in his court career, Stevens reached some conservative results. In
1976, he cast a fifth vote to permit states to reauthorize the death
penalty just 4 years after the court had invalidated it, and later he
voted to strike down strict affirmative-action plans in university
admissions and government contracting.
Stevens displayed his independence through frequent concurring and
dissenting opinions in which he explained the gradations of difference
between his views and those of his colleagues.
"Potter Stewart once remarked that he's really John Paul Jones -- 'I have
not yet begun to write,'" said Hutchinson, who served as a law clerk for
Justice Byron R. White during Stevens's 1st term.
In 1989, Stevens dissented from the court's 5 to 4 ruling that recognized
a First Amendment right to burn the American flag.
Yet his roots were in the liberal-to-moderate Midwestern wing of the
Republican Party. As the country, the court and the GOP moved right,
Stevens did not. He began to take a more favorable view of affirmative
action, dissented from the court's pro-states'-rights movement -- and
opposed the 5 to 4 decision favoring Bush in the disputed 2000
presidential election.
"He may have been moved to the left in the sense that he really rejects
the direction of his party," said John O. McGinnis, a law professor at
Northwestern University. "And who are the representatives of that on the
court? Justices Scalia and Thomas. And in reaction, he moved a little to
the left."
In a 2005 speech at Fordham Law School in New York City, Stevens alluded
to his evolution, noting that "learning on the job is essential to
judging." Statistics compiled by the Washington law firm Goldstein & Howe
show that Stevens is one of the court's most frequent dissenters. In the
2004-2005 term, he dissented 21 times -- more than any other justice.
But Stevens has won his share of close cases. In 2003, he and O'Connor
co-wrote an opinion for the court upholding the McCain-Feingold campaign
finance law's limits on political advertising and contributions by a vote
of 5 to 4.
In 2005, after years of condemning the death penalty for offenders younger
than 18, which the court upheld in 1989, Stevens won a 5th vote for his
side.
He assigned the majority opinion to the swing voter, Anthony M. Kennedy, a
moderate conservative who had previously supported the death penalty for
juveniles. In a concurring opinion, Stevens defended Kennedy from a
blistering dissent by Scalia.
This was 3 years after Stevens had written the majority opinion in a 6 to
3 decision that banned the death penalty for the mentally retarded.
Stevens also wrote the opinion for a 6 to 3 majority in a 2004 case in
which the court rejected the Bush administration's view that prisoners at
Guantanamo Bay should have no opportunity to dispute their detentions in
federal court.
All of these cases showed that Stevens well understood the court's
internal dynamics, according to which the liberals needed the vote of at
least 1 of the court's centrists, Kennedy and O'Connor, to form a
majority.
"He has become good at figuring out how much he can get out of them
without losing them," Hutchinson said.
Forging majorities could become trickier for Stevens now that O'Connor has
retired. If, as expected, the court's newest members, Alito and Chief
Justice John G. Roberts Jr., prove to be consistent conservatives, only
Kennedy will be left as a potential ally for Stevens and the three other
liberal justices, David H. Souter, Ruth Bader Ginsburg and Stephen G.
Breyer.
Stevens was also the author of what may have been the court's least
popular decision in recent years, a 5 to 4 ruling in 2005 in which it
upheld the right of local governments to make property owners sell out in
favor of private developers.
Stevens's opinion argued that the result was dictated by precedent, and he
made it clear that legislatures were still free to limit such property
condemnations. Yet it was a major defeat for the conservative property
rights movement, which portrayed the ruling as a blow to small businesses
and homeowners.
The backlash against the case was wide and fierce.
The Constitution's guarantee of life tenure for federal judges has been a
double-edged sword, aiding judicial independence but also enabling some
ailing, elderly justices to linger well past their prime. Still, only
Holmes and Taney served at an older age than Stevens. Holmes was two
months shy of his 91st birthday when he stepped down in 1932; Taney was
serving as chief justice when he died in 1864 at age 87.
Today, Stevens is 85 years and 307 days old, 40 days older than the
4th-oldest justice, Harry A. Blackmun, was when he retired in 1994. At
oral arguments, Stevens exhibits a full command of each case, politely
prefacing his frequent questions to lawyers with "May I ask just one
thing?"
According to family members and former law clerks, Stevens still writes
the 1st draft of his opinions. He uses the Internet, studied French before
a recent vacation in Europe and has become hooked on Sudoku number
puzzles. An amateur Shakespeare scholar, he has publicly argued that the
Bard's plays may have been written by Edward De Vere, the 17th Earl of
Oxford.
Stevens has survived prostate cancer. He had a single-bypass heart
operation in the 1970s -- which Susan Mullen described as "a real wake-up
call." Since then, he has followed a low-fat diet, eating only a
grapefruit for lunch.
He plays singles tennis three mornings a week. "From what I hear, he still
gets to a lot of balls" on the tennis court, said Michael Gottlieb, a
former law clerk with whom Stevens practiced for Wrigley Field.
Stevens has lived long enough to meet seven great-grandchildren. But he is
not the oldest living member of his family. His brother William, 88,
practices law part time in Naples, Fla.
"He is in excellent health," William Stevens said of his younger brother
-- before excusing himself to return to his office.
William Stevens will turn 89 on April 19, one day before Justice Stevens
turns 86.
(source: Washington Post)
