In 4th Decade On High Court, Stevens Stays True to Form
Justice Known for Dissents Enters Top 10 for Tenure

By Robert Barnes
Washington Post Staff Writer
Monday, May 21, 2007

Those who wonder if Supreme Court Justice John Paul Stevens might be tiring of the same old same old after 31 years on the job won't find any evidence in the court's workload this term.

Stevens was an active, if unfailingly polite, questioner at the court's oral argument sessions, wrote one of the court's two most important opinions issued so far, and is even more prolific when he's on the losing side. True to his reputation, he has written more dissents than any other member of the court -- one of them longer than the majority opinion with which he disagreed.

In a matter of months, the 87-year-old from Chicago could become the second-oldest justice ever to serve on the court, and earlier this year he moved into 10th place on the list of longest-serving justices.

He shrugged it off in an interview with the Third Branch, the newsletter of the federal courts.

"It's not something I attach any special importance to," Stevens said. "I know there are a lot of people out there who think I've been here five or 10 years too long. But the reason I stay on is that I enjoy the job. It's a rare privilege to have this job, to have work this interesting and challenging at this stage in your life."

You'd be hard pressed to find anyone of the left, of course, who thinks Stevens has overstayed his welcome. They pray for his health and hope he continues to find his work interesting.

He is the veteran of the court's four liberals, who have at times found a fifth vote on the increasingly conservative court to side with death row inmates in several cases and to force the Bush administration, in Massachusetts v. EPA, to deal with greenhouse gases.

"The rise in sea levels associated with global warming has already harmed and will continue to harm Massachusetts," Stevens wrote in affirming the commonwealth's right to sue the agency. "The risk of catastrophic harm, though remote, is nevertheless real."

But Stevens might be known more for his dissents, which are numerous. This term, he has been on the losing side in 12 cases, and wrote dissents in eight of them.

On the bench, Stevens is gentle with lawyers -- "If I may ask" is how he frequently begins a query. His idea of roughing them up is to request a yes-or-no answer to his questions.

Like all the justices, he's a bit less accommodating in his writing.

Last week, he clashed with the majority in a death penalty case in which the court ruled that an Arizona inmate did not deserve a new hearing on possible mitigating evidence in his sentence. The man had not cooperated at his trial, and had forbidden his attorney to call the man's ex-wife and birth mother to testify about his background.

But Stevens said the lawyer should have done more to inform the jury about the man's psychological problems.

"Unless I missed the portion of the record indicating that respondent's ex-wife and birth mother were trained psychologists, neither could have offered expert testimony about respondent's organic brain disorder," Stevens wrote.

And he and Justice Antonin Scalia mixed it up in a battle of footnotes over a case involving a Georgia deputy sheriff who rammed a suspect during a high-speed chase, leaving the man paralyzed. The other justices who saw a videotape of the chase felt the deputy was trying to prevent harm to the public by ending the chase, even in a way that could kill the other driver.

Scalia called it a "a Hollywood-style car chase of the most frightening sort," but Stevens said his younger colleagues -- after all, the next oldest is only 74 -- were overreacting.

Stevens said the other justices were "unduly frightened."

"Had they 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 slow-poke in the face of oncoming traffic were routine -- they might well have reacted to the videotape more dispassionately," he wrote.

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