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With Longevity on Court, Stevens's Center-Left Influence Has Grown

By Charles Lane
Washington Post Staff Writer
Tuesday, February 21, 2006

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 first 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 first three or four 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 four 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 first 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 fifth 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 three 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 one 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 fourth-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 first 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.

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