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Replacing Justice Stevens on high court is not just a matter of ideology

Justice John Paul Stevens's retirement this summer means losing not only a liberal on the court, but also a skilled builder of majorities.
Justice John Paul Stevens's retirement this summer means losing not only a liberal on the court, but also a skilled builder of majorities. (J. Scott Applewhite/associated Press)
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That's because the view of Stevens 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 legal mind and the reputation he had built investigating corruption on the Illinois Supreme Court. The work led to his being selected by President Richard M. Nixon for the U.S. Court of Appeals for the 7th Circuit, and then by Ford to replace Justice William O. Douglas.

For years, Stevens was known for his numerous dissents because 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 studied 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 private conference, the senior justice speaks just after the chief justice. 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 opposite.

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 justices in striking a Texas law that outlawed homosexual behavior, Stevens assigned him the opinion. 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 belief that judges play a collaborative 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 suggestion 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 running battle between Stevens and Scalia. When Stevens wrote in 2008 that his experience had convinced him the death penalty could not be applied constitutionally, Scalia wrote in reply that "it is Justice Stevens's experience that reigns over all."

And Richard A. Epstein, a leading libertarian law professor at the University of Chicago, said Stevens's deference to government power comes at the expense of the Constitution's emphasis on small government, economic liberties 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 questions," 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."

Staff writer Carol D. Leonnig contributed to this report.

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