The End of an Era, for Court and Nation

[Cees Binkhorst]

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Traditions — especially traditions in the law — are as likely to codify
the preferences of those in power as they are to reflect necessity or
proven wisdom.

In an interview last week, he said that every one of the dozen justices
appointed to the court since 1971, including himself, was more
conservative than his or her predecessor.
“We’ll wait and see to see if the most recent change fits that,” he said
of Justice Sonia Sotomayor, who joined the court last year. “But prior
to Sonia’s joining the court that was true with the possible exception
of Ruth Ginsburg.”


April 9, 2010
The End of an Era, for Court and Nation
http://www.nytimes.com/2010/04/10/us/politics/10judge.html
By ADAM LIPTAK

WASHINGTON — Justice John Paul Stevens, who announced his resignation
from the Supreme Court on Friday after 34 years, may be the last justice
from a time when ability and independence, rather than perceived
ideology, were viewed as the crucial qualifications for a seat on the
court. He was nominated in 1975 by President Gerald R. Ford, who said
all he wanted was “the finest legal mind I could find.”

Justice Stevens was confirmed 19 days after his nomination. Though Roe
v. Wade had been decided two years earlier, he was asked no questions
about the decision, which identified a constitutional right to abortion.
His confirmation hearings were the last not to be broadcast live on
television.

Justice Stevens, a Republican, gradually became the leader of the
court’s liberal wing, and his majority opinions limited the use of the
death penalty and expanded the rights of prisoners held at Guantánamo
Bay, Cuba. Over time, he became increasingly skeptical of claims of
government power, and he often voted in favor of criminal defendants,
prisoners and people claiming to have been subjected to unlawful
discrimination.

The conventional view is that his leftward drift was a bitter
disappointment to his sponsors. Mr. Ford had certainly cared about
judicial ideology: As a congressman in 1970, he led the failed attempt
to impeach Justice William O. Douglas for being too liberal, saying he
had endorsed “hippie-yippie-style revolution.”

But Mr. Ford remained a fan of Justice Stevens.

“I am prepared to allow history’s judgment of my term in office to rest
(if necessary, exclusively) on my nomination 30 years ago of John Paul
Stevens to the U.S. Supreme Court,” Mr. Ford wrote in 2005.

There is some truth, backed by evidence in the political science
literature, that Justice Stevens moved to the left over time. But there
is also support for his view that it was the court that moved to the right.

In an interview last week, he said that every one of the dozen justices
appointed to the court since 1971, including himself, was more
conservative than his or her predecessor.

“We’ll wait and see to see if the most recent change fits that,” he said
of Justice Sonia Sotomayor, who joined the court last year. “But prior
to Sonia’s joining the court that was true with the possible exception
of Ruth Ginsburg.”

Justice Stevens’s retirement gives President Obama a second opportunity
to name a justice, and it means the nation is likely to see a
confirmation battle for the second summer in a row.

If Mr. Obama chooses another liberal, it will not alter the fundamental
ideological balance on the court. Nonetheless, the loss of Justice
Stevens’s personal charm, canny tactics and institutional memory can
only leave the court’s more liberal wing in a weakened position.

Justice Stevens, who will turn 90 on April 20, is the longest-serving
member of the current Supreme Court by more than a decade. He became the
senior justice in 1994 with the retirement of Justice Harry A. Blackmun.

That position matters. When the chief justice is not in the majority,
the senior justice in the majority is given the power to assign the
majority opinion. For the last decade and a half, that justice has
almost always been Justice Stevens, and he has used that power with
patience and skill to forge and maintain alliances in major liberal
victories, often locking in Justice Anthony M. Kennedy’s swing vote by
assigning the opinion to him.

Justice Stevens has played a significant and often behind-the-scenes
role in cases involving affirmative action, abortion rights and
executive power. He grew disillusioned with the death penalty over the
years, announcing in 2008 his conclusion that it violated the Eighth
Amendment. But he went on to say that his conclusion did not justify “a
refusal to respect precedents that remain a part of our law.”

And he wrote major dissents in two of the court’s most hard-fought
recent 5-to-4 decisions, one ruling that the Second Amendment protects
an individual right to own guns, the other that corporations may spend
freely in candidate elections. In that second case, Citizens United,
Justice Stevens for the first time showed his age on the bench,
stumbling a bit as he read a 20-minute dissent.

But for all his influence, he was never well known to the public. When
Americans are asked to name members of the Supreme Court in public
opinion surveys, his name is routinely the least likely to be mentioned.

Justice Stevens was born to a prominent Chicago family that operated
what was then the largest hotel in the world, the Stevens Hotel, with
3,000 rooms. During the Depression, the family struggled to stay afloat,
and his father, Ernest Stevens, was charged with embezzling from the
family’s insurance business.

He was convicted in 1933, but the conviction was overturned by the
Illinois Supreme Court the next year. The wrenching experience informed
the young John Stevens’s thinking about criminal law, and he has been
alert in his decisions to the possibility of prosecutorial misconduct
and wrongful convictions.

Mr. Stevens attended the University of Chicago and Northwestern
University School of Law. In between, he served in the Navy in World War
II, signing up on Dec. 6, 1941. “I’m sure you know how the enemy
responded the following day,” he likes to say, referring to the Pearl
Harbor attack. He earned a Bronze Star for his work as a code-breaker.

After law school, he served as a clerk to Justice Wiley B. Rutledge Jr.,
the last of President Franklin D. Roosevelt’s appointees. Turning down
an offer to teach at Yale Law School, Mr. Stevens returned to Chicago to
practice law, specializing in antitrust cases. His career in private
practice was punctuated by stints in government service, including as
counsel to a special commission of the Illinois Supreme Court that led
to the resignations of two State Supreme Court justices.

President Richard M. Nixon appointed him to the United States Court of
Appeals for the Seventh Circuit, in Chicago, in 1970.

Justice Stevens has maintained an active life outside the court, and has
done much of his work from a home in Florida, for years piloting his own
plane there and back. He loves tennis, golf and bridge.

His long life has given him a frame of reference that has amused and
sometimes confused his colleagues. In a case about the free speech
rights of high school students on the subject of drugs, he wrote that
popular opinion can change, as it did about Prohibition.

“The current dominant opinion supporting the war on drugs in general,
and our antimarijuana laws in particular,” he wrote, “is reminiscent of
the opinion that supported the nationwide ban on alcohol consumption
when I was a student.”

In a dissent in a case about a high-speed police chase, he said things
used to be different on the nation’s roads. Had the justices in the
majority “learned to drive when most high-speed driving took place on
two-lane roads rather than on superhighways — when split-second
judgments about the risk of passing a slowpoke in the face of oncoming
traffic were routine — they might well have reacted to the videotape
more dispassionately,” Justice Stevens wrote.

In Citizens United, he referred to Tokyo Rose, the World War II
propagandist. “My clerks didn’t know where that came from,” he said last
week.

He is a fast and prolific writer, often writing separately even when he
has joined another justice’s majority or dissenting opinion. In an
interview with the authors of a biography called “John Paul Stevens: An
Independent Life,” to be published next month, Justice Ruth Bader
Ginsburg said that a secret to Justice Stevens’s outsize influence is
the speed with which he provides useful comments on other justices’
draft opinions.

He took pride, he said last week, in writing his own first drafts. “I
really think it’s a good practice because you will find sometimes that
it won’t write, and then you have to start over,” he said.

He has written more than 600 dissents over the years, and he said last
week that he felt an obligation to clarify points of disagreement.
“There is a duty to explain your position if it isn’t the same as the
majority,” he said, “and it’s just part of my thinking about what a
judge should do.”

Justice Stevens never joined the “cert. pool,” the arrangement under
which the justices share their law clerks and have them produce a single
memorandum making a recommendation about whether the court should hear
each of the more than 7,000 appeals that reach it each year. The
memorandum is then used by all participating chambers.

For years, Justice Stevens has been the only justice to go it alone;
Justice Samuel A. Alito Jr. left the cert. pool in 2008.

At first, Justice Stevens said, “I just didn’t join it because I thought
it was not a time-saver, and I thought I could do the certs more
promptly and more efficiently if I were not a part of the pool.” Later
on, he said, he concluded that he was not sure “the cert. pool is the
best mechanism for the court.”

Justice Stevens bristled at the notion that he had no judicial philosophy.

“There are a lot of things that run through my work over the years that
I think are totally consistent,” he said. “There’s a great deal of
wisdom to the notion that you try to decide cases narrowly and you let
the other decision-makers make as many decisions as they can.”

But he has not embraced originalism, the approach emphasizing adherence
to the original meaning of the constitutional text. In a private
memorandum to Justice Blackmun in 1992 that became available when
Justice Blackmun’s papers were made public, Justice Stevens put his
objection this way: “Traditions — especially traditions in the law — are
as likely to codify the preferences of those in power as they are to
reflect necessity or proven wisdom.”

Justice Stevens has often been sympathetic to the claims of criminal
defendants and people who say they were subjected to unlawful
discrimination. But he has been skeptical when the government has
claimed it could not be sued over asserted misconduct.

He has not taken a categorical approach in free speech cases and has
instead adjusted the level of First Amendment protection to the value of
the speech in question. He wrote the majority opinion in F.C.C. v.
Pacifica Foundation that said the government could ban the broadcast of
the comedian George Carlin’s “seven dirty words” monologue. And he
dissented from a 1989 decision that gave First Amendment protection to
flag burning.

He has been alert to the humanity of the people whose cases made their
way to the court. In a 1984 dissent, he objected to a ruling that said
prisoners had no privacy rights even if guards undertook searches to
harass them.

“Personal letters, snapshots of family members, a souvenir, a deck of
cards, a hobby kit, perhaps a diary or a training manual for an
apprentice in a new trade, or even a Bible — a variety of inexpensive
items may enable a prisoner to maintain contact with some part of his
past and an eye to the possibility of a better future,” he wrote. “Are
all of these items subject to unrestrained perusal, confiscation or
mutilation at the hands of a possibly hostile guard?”

A modicum of privacy, he said, “may mark the difference between slavery
and humanity.”

He has written his share of memorable lines over the years.

In Clinton v. Jones, the 1997 decision that allowed a sexual harassment
case against President Bill Clinton to proceed: “If properly managed by
the district court, it appears to us highly unlikely to occupy any
substantial amount of Mr. Clinton’s time.”

In Bush v. Gore, the 2000 decision that handed the presidency to George
W. Bush: “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.”

And in Citizens United, the January decision allowing corporations to
spend freely in candidate elections: “Essentially, five justices were
unhappy with the limited nature of the case before us, so they changed
the case to give themselves an opportunity to change the law.”

In retiring, Justice Stevens has deprived himself of a shot at a couple
of records, particularly since his mother lived to 97. He will be about
two years short of the record for longest service on the court, held by
Justice Douglas, and about a year shy of Justice Oliver Wendell Holmes
Jr.’s record as the oldest justice.

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