Justice Stevens casts a long shadow over Supreme Court

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.

On other topics, he said he was sure his military experience in World War II influenced his view that a federal statute banning flag-burning was constitutional. It is a decision that puzzles his liberal supporters, and he acknowledged that his clerks that term were unanimous in believing he was wrong.

"I still think I was right," he said.

He said it was wrong for senators vetting Supreme Court nominees to press them on their views of issues that might come before the court, and added that it was not likely to elicit accurate information anyway. "It's often that you don't really know" how you'll vote until the case has been briefed and argued, Stevens said.

Stevens also said he thought it important that federal judges have life tenure to ensure their independence.

He recalled a case from when he was a judge of the U.S. Court of Appeals for the 7th Circuit, when he issued what he thought would be an unpopular dissent. The decision, he wrongly believed, would mean that he could "kiss goodbye to ever going on the Supreme Court."

On the other hand, he said, "I remember thinking: I have life tenure."

Chief Judge John G. Roberts Jr., also at the conference here, told the crowd that it is "hard to imagine" the Supreme Court without Stevens.

When he was asked by Fisher how he will feel on the first Monday in October, when the court begins its new term, Stevens answered quietly, "I don't know. I really don't know."

But he was ready with the reply for a question that must come often for a 90-year-old man who is a leader on the Supreme Court and still plays singles tennis three days a week.

What's the secret? "If you marry a beautiful dietician," said Stevens, referring to his wife, Maryan, "that will do wonders for you."

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