Justice Stevens casts a long shadow over Supreme Court

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By Robert Barnes
Washington Post Staff Writer
Thursday, May 6, 2010; 12:32 PM

COLUMBUS, OHIO -- "The truth is that I can't tie a four-in-hand."

That was Justice John Paul Stevens, explaining why he dons bow ties instead of the "old-fashioned" long ties that most every other man does. Apparently, there is a secret world of bow-tie-wearers, who admire one other's ties and regularly trade them; Stevens was wearing one such tie Wednesday at his appearance before the annual conference of the 6th Judicial Circuit.

During his nearly 35 years on the Supreme Court, Stevens tried hard not to get "any more ink than necessary," and it worked. The 90-year-old justice is one of the least-known members of the court, according to polls.

But now, just when he's leaving, his stature has grown beyond the court he first entered as a clerk more than 60 years ago. President Obama is looking for a replacement who might one day acquire the leadership skills and strategic acumen that Stevens uses to squeeze out the occasional liberal victory on an increasingly conservative court.

It's not likely to be easy to replace a man who, by the end of the court's term in June, will have served longer than all but one of the nation's 111 justices.

Stevens is the subject of two new books, and he is being regularly feted and interviewed and showered with baseball memorabilia -- fitting for the man who was in the stands when Babe Ruth hit his "called shot" home run in the 1932 World Series.

At this conference, he was fondly interviewed by two of his former clerks: Jeffrey L. Fisher, a law professor at Stanford who has become a frequent practitioner before the high court, and Teresa Wynn Roseborough, senior chief counsel at Metropolitan Life Insurance.

He talked extensively about why he believes the death penalty violates the Eighth Amendment's prohibition of "cruel and unusual punishment," a position he took in 2008 after being part of the court that reinstated capital punishment in 1976.

"I have to confess that over the years my views have evolved," said Stevens, who was not joined by any other member of the court in the latter opinion. "But I also thought that's consistent with the basic theory of the Eighth Amendment" and the court's views that it be interpreted in light of society's evolving standards.

Stevens recalled the biting criticism by Justice Antonin Scalia after Stevens wrote that his "experience" convinced him the death penalty was unworkable. The Constitution clearly allows capital punishment, Scalia wrote, but "it is Justice Stevens's experience that reigns over all."

But Stevens said Wednesday that experience clearly is called for. "The provisions of the Constitution are not fungible," he said. "Some provisions do require the exercise of judgment on the part of the judge."

He said when he voted to reinstate capital punishment -- in his first year on the court -- he thought it would become increasingly harder to impose the sentence. Instead, "the jurisprudence has worked in exactly the opposite direction," and he thinks that because "our system malfunctions every now and then," the risk is too high that an innocent person might be put to death.


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