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Justice John Paul Stevens’s retirement this summer means losing not only a liberal on the court, but also a skilled builder of majorities.
Stevens’s importance on high court goes beyond the issue of ideology
From right to left
Nominated by Republican President Gerald R. Ford, Justice John Paul Stevens was considered a centrist when he joined the Supreme Court in 1975. Stevens’s role began to shift after the retirements of liberal justices William Brennan and Thurgood Marshall, and he has served as the leader of the court’s liberal wing for more than 15 years. These are a sample of notable opinions:
Death penalty July 2, 1976
Stevens
Gregg v. Georgia: Stevens voted with the majority to reinstate capital punishment after a four-year moratorium. In a 2008 opinion, Stevens wrote that he had come to the conclusion that the death penalty was unconstitutional.
Racial preferences July 2, 1980
Stevens
Fullilove v. Klutznick: The court ruled that Congress may impose racial quotas in handing out federal money. In his dissent, Stevens compared racial preferences in federal contracting with Nazi laws excluding Jews from citizenship.
School prayer June 4, 1985
Stevens
Wallace v. Jaffree: The court reaffirmed its ban on state-sponsored prayer in public schools, striking down an Alabama law that required a moment of silence each day for meditation or prayer. Stevens wrote the majority opinion.
Flag burning June 21, 1989
Stevens
Texas v. Johnson: The court ruled that the First Amendment protects protesters who burn American flags in political demonstrations. Stevens took the unusual step of reading his dissent from the bench.
Executive power May 27, 1997
Stevens
Clinton v. Jones: Stevens wrote the court's unanimous opinion, ruling that Paula Corbin Jones could move forward with her sexual harassment lawsuit against President Bill Clinton while he was in office. The court rejected Clinton's argument that sitting presidents should have legal immunity from allegations involving their personal conduct.
Abortion June 28, 2000
Stevens
stevens from A1
al on the reconstituted court will have the powers of seniority that Stevens, 89, put to use. As was clear at the beginning of Obama’s presidency, the actu- arial tables are against him in re- making a newly muscular conser- vative court into a progressive force. Replacing a conservative justice with a liberal would make a difference, but the four justices consistently on the right are younger and show no signs of de- parture.
Douglas T. Kendall, head of the
liberal Constitutional Account- ability Center, said that makes the stakes higher for Obama this time than it was last year, when he chose Sotomayor to replace re- tiring Justice David H. Souter. Souter was a consistent vote on the left but not a leader on the court.
“Replacing Justice Stevens is harder because Stevens plays so many critical roles on the current court: He’s the leader of the liber- al wing, the best opinion writer on the court and, simultaneously, the justice most able to build sur- prising coalitions,” Kendall said. “President Obama has to con- sider characteristics in addition to ideology — such as consensus- building and opinion-writing skills — or face the risk that a lib- eral nominee will result in a
“He’s . . . most able to build surprising
coalitions.”
— Douglas T. Kendall, Constitutional
Accountability Center
rightward lurch on the Court.” The question of how to replace
Stenberg v. Carhart: Stevens cobbled together a majority to strike down a state law that banned the controversial procedure known to critics as “partial birth” abortion.
Detainee rights June 29, 2006
Stevens
John G. Roberts Jr. did not participate because he was on the panel whose ruling was under review.
Hamdan v. Rumsfeld: The court struck down the military commissions President George W. Bush established to try suspected members of al-Qaeda. Stevens wrote the majority opinion.
Campaign finance Jan. 21, 2010
Stevens
Citizens United v. FEC: The court ruled that companies can dip into their treasuries to spend as much as they want to support or oppose individual candidates. Stevens again took the unusual step of reading his dissent from the bench.
SOURCE: Staff reports KAREN YOURISH AND ALBERTO CUADRA/THE WASHINGTON POST
the “liberal” Stevens “would have surprised people in 1975” who confirmed him unanimously, said Michael Gerhardt, a law profes- sor at the University of North Carolina who advised Democrats during Sotomayor’s confirmation hearings. That’s because the view of Ste- vens based on the second half of his career on the court obscures the first. Stevens was a Republican nominated by a Republican, President Gerald R. Ford, chosen not for his ideology but for his le- gal mind and the reputation he had built investigating corrup- tion on the Illinois Supreme Court. The work led to his being selected by President Richard M. Nixon for the U.S. Court of Ap- peals for the 7th Circuit, and then by Ford to replace Justice Wil- liam O. Douglas. For years, Stevens was known for his numerous dissents be- cause he disagreed not only with how the majority decided a case, but how his fellow dissenters came to their conclusions. “When I clerked for him [in the
late 1980s], the terms ‘maverick’ and ‘wild card’ still carried a lot of currency,” said Diane Amann, a law professor at the University of California at Davis, who has stud- ied and written about Stevens’s
career. But Stevens’s role began to
change as he outlasted the others with whom he served. He became the court’s senior justice in 1994; the position comes with modest- sounding powers, but he used it to great advantage.
When the justices vote in pri-
vate conference, the senior jus- tice speaks just after the chief jus- tice. This has meant, especially in close, ideologically divisive cases, that Stevens has had a chance to counter the views of former chief justice William H. Rehnquist and current Chief Justice John G. Roberts Jr. The role of senior justice will
fall to Justice Antonin Scalia, who in many ways is Stevens’s oppo- site.
Additionally, the senior justice decides who writes an opinion when he is in the majority and the chief justice is not. Stevens has taken that role himself to write narrow but forceful rulings striking President George W. Bush’s policies toward terrorism detainees, or broad rulings such as banning capital punishment for the mentally retarded. But he has been strategic as well. When Justice Anthony M. Kennedy joined the liberal jus- tices in striking a Texas law that outlawed homosexual behavior, Stevens assigned him the opin- ion. He made similar concessions to former justice Sandra Day O’Connor. He has been unabashed about the role that experience plays in allowing a judge to see the law differently — his talk at a seminar on his jurisprudence was titled “Learning on the Job” — and a be- lief that judges play a collab- orative role with elected officials. He told the New Yorker that a
brief stint as a congressional staff member convinced him that “the legislature really works with the judges — contrary to the sugges- tion that the statute is a statute all by itself.” Lawmakers, he said, leave ambiguities in the law “to be filled in later” by judges. Such views have sparked a run- ning battle between Stevens and Scalia. When Stevens wrote in 2008 that his experience had con- vinced him the death penalty could not be applied constitu- tionally, Scalia wrote in reply that “it is Justice Stevens’s experience that reigns over all.” And Richard A. Epstein, a lead- ing libertarian law professor at the University of Chicago, said Stevens’s deference to govern- ment power comes at the expense of the Constitution’s emphasis on small government, economic lib- erties and property rights. “On that, Justice Stevens saw
no evil, heard no evil, and did lots of evil — he was consistently on the wrong side of those ques- tions,” Epstein said. “His belief in the benevolence of government gets everything wrong.” Epstein added: “So I can’t be a fan of his. But there’s no question he became an intellectual leader of a generation of progressives.”
barnesbob@washpost.com
Staff writer Carol D. Leonnig contributed to this report.
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