Jeffrey Toobin in The New Yorker:
John Paul Stevens, who will celebrate his ninetieth birthday on April 20th, generally bides his time. Stevens is the Court’s senior Justice, in every respect. He is thirteen years older than his closest colleague in age (Ginsburg) and has served eleven years longer than the next most experienced (Scalia). Appointed by President Gerald R. Ford, in 1975, Stevens is the fourth-longest-serving Justice in the Court’s history; the record holder is the man Stevens replaced, William O. Douglas, who retired after thirty-six and a half years on the bench. Stevens is a generation or two removed from most of his colleagues; when Roberts served as a law clerk to William H. Rehnquist, Stevens had already been a Justice for five years. He was the last nominee before the Reagan years, when confirmations became contested territory in the culture wars (and he was also, not coincidentally, the last whose confirmation hearings were not broadcast live on television). In some respects, Stevens comes from another world; in a recent opinion, he noted that contemporary views on marijuana laws were “reminiscent of the opinion that supported the nationwide ban on alcohol consumption when I was a student.”
Ever since last fall, when it emerged that Stevens had hired only one law clerk for the next year, instead of his customary four, there has been growing speculation that he will soon retire. Since 1994, Stevens has been the senior Associate Justice and so has been responsible for assigning opinions when the Chief Justice is not in the majority. He has used that power to build coalitions and has become the undisputed leader of the resistance against the conservatives on the Court. “For those fifteen years, John Stevens has essentially served as the Chief Justice of the Liberal Supreme Court,” Walter Dellinger, who was the acting Solicitor General in the Clinton Administration and is a frequent advocate before the Court, says. In Stevens’s absence, leadership of the Court’s liberals would fall, by seniority, to Ginsburg, but she is also elderly and has suffered from a range of health problems. Even if President Obama appointed a like-minded replacement for Stevens, that person, while taking his seat, would not fill his role.
Stevens is an unlikely liberal icon. When he was appointed, he told me recently, he thought of himself as a Republican and always had—“ever since my father voted for Coolidge and Harding.” He declined to say whether he still does. For many decades, there have been moderate Republicans on the Court—John M. Harlan II and Potter Stewart (appointed by Eisenhower), Lewis F. Powell and Harry Blackmun (Nixon), David H. Souter (Bush I). Stevens is the last of them, and his departure will mark a cultural milestone. The moderate-Republican tradition that he came out of “goes way back,” Stevens said. “But things have changed.”
So has Stevens. His positions have evolved on such issues as civil rights and the death penalty, and he has led the Court’s counteroffensive against the Bush Administration’s treatment of the detainees at Guantánamo Bay. And, as Stevens’s profile has risen, and his views have moved left, so, too, has criticism of him from conservatives reached a higher pitch. “From the beginning of his time as a Justice, you could see Stevens’s roots in the New Deal Court and his willingness to justify an expanding welfare state,” Richard Epstein, a libertarian-leaning law professor at New York University, said. “On these issues, he’s been consistent and consistently wrong about everything—and highly influential.”
Still, Stevens’s views suggest a sensibility more than a philosophy. Many great judicial legacies have a deep theoretical foundation—Oliver Wendell Holmes’s skeptical pragmatism, William J. Brennan’s aggressive liberalism, Scalia’s insistent originalism. Stevens’s lack of one raises questions about the durability of his influence on the Court.
But, more than anything, his career shows how the Court has become a partisan battlefield. In that spirit, Roberts last week denounced President Obama’s criticism of the Court in his State of the Union address, saying that the occasion had “degenerated to a political pep rally.” When Stevens leaves, the Supreme Court will be just another place where Democrats and Republicans fight.
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How long will Stevens remain on the Court? Good genes (one of his older brothers practiced law until he was ninety-one), a happy home, plenty of exercise, and even more luck could allow Stevens to keep up the fight into his tenth decade. Last December, he had lunch with Peter Isakoff, a Washington lawyer who was one of his early Supreme Court law clerks. “He had just played tennis that morning—singles!—and I was just kind of amazed,” Isakoff recalled. “And so I asked him, ‘Do you still run?’ And he looked at me and said, ‘Well, how else are you going to get to the ball?’ ”
With the election of Barack Obama, the question of Stevens’s retirement has become more pressing. Even though Stevens was appointed by a Republican President, many assume that he would never willingly have turned his seat over to George W. Bush. I asked Stevens about his plans.
“Well, I still have my options open,” he said. “When I decided to just hire one clerk, three of my four clerks last year said they’d work for me next year if I wanted them to. So I have my options still. And then I’ll have to decide soon.” On March 8th, he told me that he would make up his mind in about a month.
Stevens needs a little more than two years to surpass Douglas for the longest tenure on the Court, and about one year to equal Oliver Wendell Holmes as the oldest serving Justice, but he said that those numbers were irrelevant. “I’ve never felt any interest in trying to break any records,” he said. He has had a closeup view of the complexities of retirement decisions for Supreme Court Justices. William Douglas, whom Stevens replaced, stayed on the Court after a series of strokes that incapacitated him; his colleagues awkwardly forced his resignation. On the other hand, O’Connor left the Court in good health, which continues, and has watched her successor, Alito, undo part of her legacy.
Did it matter which President named his replacement?
“I’d rather not answer that,” Stevens said. The Republican Party may have moved right since 1975, but Ford himself never displayed anything but pride in his choice of Stevens for the Court. In 2005, a year before his death, Ford wrote, in a tribute to Stevens, “For I am prepared to allow history’s judgment of my term in office to rest (if necessary, exclusively) on my nomination thirty years ago of John Paul Stevens to the U.S. Supreme Court.”
As for Obama, Stevens said, “I have a great admiration for him, and certainly think he’s capable of picking successfully, you know, doing a good job of filling vacancies.” He added, “You can say I will retire within the next three years. I’m sure of that.”
He will not be seen again, under any circumstances, at a State of the Union address. “I went to a few of them when I was first on the Court, but I stopped,” Stevens told me. “First, they are political occasions, where I don’t think our attendance is required. But also it comes when I am on a break in Florida. To be honest with you, I’d rather be in Florida than in Washington.”
April may turn out to be a time of high drama at the Supreme Court, even if nothing of great significance happens on the bench. On Tuesday, April 20, when the Court gathers to hear a case involving a fairly minor procedural point of criminal law, Justice John Paul Stevens will be celebrating his 90th birthday. He will thus become the second oldest Justice ever to have served (Justice Oliver Wendell Holmes sat until he was 90 and 10 months; he retired on January 12, 1932).
But, April, it now appears, could also be the month when Justice Stevens makes up his mind whether to retire this year, or to go on serving. In an interview apparently held on March 8, Stevens told a magazine reporter that he would make up his mind in about a month. “I’ll have to decide soon,” he was quoted as saying. (The reporter, Jeffrey Toobin of New Yorker Magazine, has this lengthy article on Stevens’ career in the March 22 edition.)
Stevens might not make any public announcement of his plan until after the Court has completed hearing arguments for the Term; that will be on April 28. If he should notify the White House that he is retiring, that fact almost certainly would leak out promptly, so the news might not wait until Stevens made a formal statement himself. In the meantime, he is likely to keep his own counsel on the issue.
Tony Mauro at The BLT:
Toobin’s extensive profile of Stevens charts his youth and career, and his evolution on the Court from a Republican moderate to the leader of the Court’s liberal wing, such as it is. Asked if the Court has moved to the right, Stevens said, “There’s no doubt. You don’t have to ask me that. Look at Citizens United.” He was referring to January’s decision in Citizens United v. Federal Election Commission, which overturned precedent to rule that corporate expenditures in election campaigns were protected by the First Amendment. Stevens went on to say there are dozens of decisions he is “very unhappy with,” specifically mentioning the D.C. v. Heller gun rights case of 2008 as well as Bush v. Gore in 2000.
On another current topic, Stevens told Toobin that he does not attend State of the Union addresses in part because “they are political occasions, where I don’t think our attendance is required. But it also comes when I am on a break in Florida. To be honest with you, I’d rather be in Florida than in Washington.” When the Court is not in session, Stevens spends some of his time at his Ft. Lauderdale condominium.
American Constitution Society:
In an interview with Toobin, Justice Stevens reflects on his time on the bench, saying there are “dozens” of cases he is unhappy with. The justice signaled out Citizens United v. FEC, which overturned court precedent and found that corporations have similar First Amendment rights as individuals, at least in the area of campaign financing, District of Columvia v. Heller, which found that the Second Amendment provides a personal right to possess firearms, and Bush v. Gore, which decided the 2000 presidential election.
Stevens said the Court has lurched rightward since he joined it in 1975. “You don’t have to ask me that,” Stevens responded to Toobin’s question on the tilt of the high court. “Look at Citizens United. If it is not necessary to decide a case on a very broad constitutional ground, when other grounds are available, then doesn’t that create the likelihood that people will think you’re not following the rules?”
Ashby Jones at WSJ:
Even more than Chief Justice John Roberts or the irrepressible Justice Antonin Scalia, Justice Stevens has in recent days become the Justice To Watch, namely because rumors continue to swirl that the 89-year old will soon step down, paving the way for another President Obama appointment. Toobin’s piece is a good one, providing insight into the thoughts and inner workings of the fourth-longest-serving justice in the court’s history
