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For Decades, Stevens Molded High Court Rulings
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For Decades, Stevens Molded High Court Rulings

MICHELE NORRIS, host:

From NPR News, this is ALL THINGS CONSIDERED. I'm Michele Norris.

MELISSA BLOCK, host:

And I'm Melissa Block.

Supreme Court Justice John Paul Stevens has announced that he will retire this summer, at the end of the court's current term. His 34 years of service rank him among the longest-serving justices in U.S. history.

On a court that is split 5-4 on many issues, Stevens earned the reputation as its most liberal justice. So the nomination of another liberal in his place would not change the ideological makeup of the court. We'll have more later on the front-runners to replace Stevens.

But first, NPR legal affairs correspondent Nina Totenberg has this look back.

NINA TOTENBERG: John Paul Stevens, often called a judge's judge, is something of a throwback to a less rancorous era when, as one writer put it, law and politics were a noble pursuit, not a blood sport. The quintessential Midwesterner, Stevens was born in Chicago, educated at Northwestern and the University of Chicago. In the Windy City, he earned a reputation as a brilliant lawyer and later, appeals court judge.

In 1975, President Ford appointed him to the U.S. Supreme Court. The nomination drew instant praise from Democrats and Republicans alike, and Stevens was confirmed in a remarkable three weeks. Given Stevens' lack of political ties, his rise was, to some extent, a fluke, according to his one-time law clerk Clifford Sloan.

Mr. CLIFFORD SLOAN (Former U.S. Supreme Court Clerk): It was an accident of history. And the stars lined up in a way that could not have been possible before that precise moment, and probably could not have been possible after that precise moment.

TOTENBERG: A brand-new president, Gerald Ford, suddenly had a Supreme Court vacancy to fill. And with the country still reeling from the Watergate scandal, the name of the game was to pick someone of unassailable credentials and no political connections.

Ford assigned his attorney general, Edward Levi - a man also picked for his lack of political ties - to do the screening. And Levi, the onetime dean of the University of Chicago Law School, quickly fixed his eye on Stevens, a lifelong Republican with no record of political or judicial activism.

Once on the court, Stevens quickly earned a reputation for quality work and for independence. Unlike other justices, he even declined to attend State of the Union addresses. In his first decade, he was seen as a center-right justice. But as the composition of the court grew more and more conservative, he found himself referred to as the court's most liberal member - a moniker he never liked, according to fellow Chicagoan Abner Mikva, who served 15 years as a federal judge himself.

Mr. ABNER MIKVA (Former Federal Judge): It bothers him a great deal whenever he hears himself portrayed as a liberal. And we're together, he looks at me plaintively and he says: Now, Ab, you know I'm not a liberal. And I do.

TOTENBERG: Over the years, Stevens authored some 400 majority opinions for the court on almost every issue imaginable, from property rights to immigration, from abortion to obscenity, from school prayer to campaign finance reform, from term limits to the relationship between the federal and state governments. As former Solicitor General Ted Olson put it...

Mr. TED OLSON (Former U.S. Solicitor General): The crafty and genial hand of Justice Stevens was everywhere evident.

TOTENBERG: The decisions Stevens will likely be remembered for most, though, are those he authored on national security and presidential power. Stevens wrote the court's 5-3 decision repudiating President Bush's assertion of unilateral executive power in setting up war crimes tribunals at Guantanamo Bay, Cuba.

And in 2004, he authored the court's 6-3 decision allowing the Guantanamo detainees to challenge their detentions in the U.S. courts. Both had profound implications for the limits of presidential power.

Mr. Bush was not the first president to feel Stevens' sting. Stevens also wrote the opinion for a unanimous court in Clinton v. Jones, the decision refusing to postpone Paula Jones' sexual harassment lawsuit against President Clinton. In summarizing the decision from the bench in 1997, Stevens dismissed the notion that the suit would burden the presidency.

Justice JOHN PAUL STEVENS (U.S. Supreme Court): In the entire history of the republic, only three sitting presidents have been subjected to suits for their private actions. As for the case at hand, there's nothing in the record to identify any potential harm that might ensue from scheduling the trial promptly.

TOTENBERG: As a former Stevens law clerk put it, the justice just thought that if the president had time to play golf, he had time to defend a lawsuit. Critics thought Stevens' view naive - the view of a man who knew nothing of the venality of politics or political enemies. And indeed, as it turned out, the Paula Jones case led directly to the impeachment of President Clinton. But the defenders of the decision see it as an example of the highest value in the American legal system, that no person is above the law.

While Stevens authored some of the court's most complex and important decisions, often bringing together under one legal tent justices one might not expect to agree, he also dissented from the court's rulings more frequently than any other justice.

When the court struck down a Texas law that punished burning the American flag, Stevens, the Navy veteran and winner of the Bronze Star, objected. When the court revived the doctrine of states' rights, he dissented.

In 1997, he took the unusual step of announcing his dissent from the bench when the court struck down a key section of the Brady gun control law that imposed a short waiting period on gun buyers to allow local law-enforcement officials to run a criminal records check.

Justice STEVENS: The basic question is whether Congress, acting on behalf of the people of the entire nation, has the power to require local law-enforcement officers to perform certain duties. Since the ultimate issue is one of power, we have to consider its implications in times of national emergency, matters such as the mass inoculation of children to forestall an epidemic, or perhaps the threat of an international terrorist.

TOTENBERG: Stevens' ultimate revenge came eight years later, when he managed to eke out a 5-4 majority upholding a federal regulatory scheme under which the federal law making marijuana illegal trumped state laws legalizing it for medical purposes.

Justice STEVENS: Our case law firmly establishes that Congress has the power to regulate purely local activities, when necessary to implement a comprehensive, national regulatory program.

TOTENBERG: This year, though, Stevens' victories were few at a court growing more and more conservative. When a new, five-justice conservative majority struck down a 100-year-old ban on corporate spending in candidate elections, Stevens blasted the majority for radically departing from established law and opening the floodgates of corruption. It was a dissent as angry as the one he wrote in Bush v. Gore.

Although we may never know with complete certainty the identity of the winner of this year's presidential election, he wrote, the identity of the loser is clear - it is the nation's confidence in the judge as impartial guardian of the rule of law.

Stevens' frequent dissents, as well as the separate opinions he often filed to note that his views differed from fellow justices, earned him a reputation as a maverick. But as he's explained, his insistence on stating his views stemmed directly from his experience as, in effect, a special prosecutor when he was appointed to investigate charges of misconduct against two sitting Illinois Supreme Court justices many years ago.

What Stevens found was that the court opinion that had been improperly influenced was not, as the public record indicated, unanimous. Two justices had in fact dissented, but in the name of collegiality had not publicly noted their dissents. It's because of this incident, Stevens said, that when he became a justice on the U.S. Supreme Court, he did not go along with colleagues in some cases. Said Stevens: The fact that a justice disagrees with his or her colleagues is a matter of sufficient importance that the public is entitled to know it.

In that way and so many others, Justice Stevens, for decades, marched to the beat of his own drummer. The question now is what beat his replacement will march to. Whoever the president chooses, it's doubtful that he or she will wield the kind of influence that Stevens did - at least, not for some time.

During his more than three decades on the court, Stevens became increasingly skilled at molding opinion to reach the magic number of five majority justices. For example, in 1992, Stevens played a pivotal role in the court's reconsideration of its controversial abortion ruling, Roe v. Wade. With the court closely divided, three justices - O'Connor, Kennedy and Souter -circulated an opinion upholding what they called the core of Roe, but making it easier for states to regulate abortions. The opinion split the court into three separate factions: four justices to reverse Roe, three to uphold its core, and two to uphold Roe entirely. Stevens and Justice Harry Blackmun were the two.

But upon receiving the draft of the three middle-ground justices, Stevens suggested a reorganization of their opinion so that he and Blackmun could join most of it, and there would be a single opinion that was supported by a court majority. O'Connor, Kennedy and Souter quickly agreed, and the opinion became the law of the land.

Putting together such victories became increasingly difficult after the retirement of Justice O'Connor, when the court moved dramatically to the right. But Stevens continued to score the occasional, unexpected win using his knowledge of the law, his powers of persuasion and logic, and the wisdom of a man nearing 90.

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