Justice Stevens and the tipping point

WASHINGTON â€”  Justice John Paul Stevens, 87, last week became the second-oldest justice in the Supreme Court’s history. Only Justice Oliver Wendell Holmes, who retired at 90 in 1932, served to an older age.

Although Stevens has given no hint of retiring and shows no sign of slowing down -- in the courtroom, he looks and sounds much as he did 20 years ago -- the question of his tenure looms over the court and the 2008 presidential campaign.

If there is a tipping point in the Supreme Court’s future, it is likely to come with his departure. What kind of justice would replace him -- and how strong the court’s slim conservative majority would be -- may well depend on who is elected president.

Stevens, a lifelong Republican, was appointed to the high court in 1975 by President Ford. He succeeded William O. Douglas, a New Deal-era liberal, and soon helped form a moderate-to-conservative coalition that restored the death penalty as an option for states.

In the last decade, however, he has emerged as the strongest voice for the court’s shrinking liberal wing. Stevens supports the strict separation of church and state, a woman’s right to choose abortion and strong protection for the environment. This year he wrote the opinion for the 5-4 majority that said the government may restrict greenhouse gases as a threat to the environment.

The court’s last remaining World War II veteran, he also has insisted that the Bush administration must abide by the standards of the Geneva Convention in its treatment of prisoners in the war on terrorism.

“As he sees it, he hasn’t moved over the years; the court has moved,� said Diane Amann, a former clerk for Stevens and a visiting law professor at UC Berkeley. “In 1975, he was seen as a centrist judge when he was appointed by a centrist Republican president. Now, that wing of the party seems almost nonexistent.�

On the major issues that divide the court -- including abortion, race, religion, the death penalty and the reach of presidential power -- Stevens and Justice Ruth Bader Ginsburg, 74, vote on the liberal side. They are usually joined by Justices David H. Souter, 68, and Stephen G. Breyer, 69.

This year a younger generation of conservatives, led by 52-year-old Chief Justice John G. Roberts Jr., appeared to take control. Along with Justice Samuel A. Alito Jr., 57, and Clarence Thomas, 59, the chief justice can be expected to look forward to two or more decades on the court. On major issues, he has a reliable fourth vote in Justice Antonin Scalia, 71, and uncertain fifth vote in Justice Anthony M. Kennedy, 71.

Observers say the November 2008 election is particularly important because the court’s two oldest justices -- the most likely to create the next vacancy -- are its two strongest liberals.

“If Stevens or Ginsburg are replaced by a Republican in the Roberts-Alito mold, the conservatives will have a solid majority, and it won’t matter what Kennedy does,� said Erwin Chemerinsky, a well-known professor of constitutional law. “But if a Democrat replaces them, it will keep the balance where it is, at least in the short term.�

In the meantime, lawyers at the high court will have to contend with Stevens’ knack for asking questions that reveal the weakness in their argument.

“His questions often start with an unassuming and gentle lead-in, but he has ability to cut to the heart of a case,� U.S. Solicitor General Paul Clement, the government’s chief lawyer before the high court, said.

Last month, Clement was urging the justices to uphold a broad anti-pornography law that makes it a crime to advertise or offer online any material that shows sex involving minors.

What about a documentary film that shows soldiers raping girls, Stevens asked, posing a hypothetical question. It is “a depiction of atrocities being committed in some foreign country. . . . Wouldn’t that be covered by the statute?�

“Well, Justice Stevens . . . if the depiction(s) were sufficiently graphic. . . ,� Clement replied.

“They are,� Stevens replied, refusing to let Clement wiggle away. It is “a depiction of a war crime taking place,� he continued. “That would be a crime?�

Yes, it might well be, Clement agreed. Stevens had made his point: that simply applying the words of the law might cover many persons who are not normally thought of as child pornographers.

“He seems to get younger every year,� Clement said in the interview.

Northwestern University law professor Steven Calabresi, a co-founder of the conservative Federalist Society, said: “He is absolutely remarkable for the vigor and intellectual energy he brings to the job. And I say that as someone who doesn’t always agree with him.

“I wouldn’t be surprised if he stayed and set a new record for the longest tenure.�

Douglas, his predecessor, served a record 36 years. In December, Stevens will have completed 32 years.

Stevens credits the steady, challenging workload of the court with keeping him engaged in his job two decades after others of his generation have retired.

An early riser, Stevens likes to work at his computer at home for several hours before coming to the court. While most of the justices rely heavily on their clerks for writing, Stevens prides himself in writing the first draft of all of his opinions and dissents. He also keeps active in several sports and plays in competitive bridge tournaments.

The youngest of four boys, Stevens was born into a wealthy family in Chicago. (He still speaks with dismay over the Cubs’ defeat in the 1929 World Series.) His grandfather, J.W. Stevens, owned the Illinois Life Insurance Co. and the LaSalle Hotel in Chicago. And in the mid-1920s, his father, Ernest, decided to build an even grander hotel facing Lake Michigan.

Young John was 7 in 1927 when the Stevens Hotel opened on South Michigan Avenue. With 28 floors and 3,000 rooms, it was hailed as the world’s largest hotel. Charles Lindbergh stayed there while on a national tour to celebrate his solo flight across the Atlantic. He presented the boy with a pet dove, which was named “Lindy.� Young John also met aviation pioneer Amelia Earhart, who wondered why he was up so late on a school night.

The hotel’s good days did not last long. After the 1929 stock market crash, the Stevens family lost the hotel to bankruptcy.

In 1933, Stevens’ father was indicted for embezzlement. He had transferred money from the insurance company to the hotel in hopes of keeping it afloat. At the depth of the Depression, wealthy business owners were none too popular, and Ernest Stevens was convicted.

A year later, however, the Illinois Supreme Court unanimously overturned the conviction and ruled that the transfer of funds between the two companies did not amount to embezzlement.

Though the Stevens family lost its fortune, the landmark hotel survived and is now the Chicago Hilton and Towers. Justice Stevens has declined to say much about his father’s ordeal, except that it made him aware at a young age that the justice system does not always get it right.

Stevens joined the Navy on Dec. 6, 1941, the day before the attack on Pearl Harbor. He served in a Navy intelligence unit in the Pacific that in 1943 was credited with tracking and shooting down Admiral Isoroku Yamamoto, who had led the Japanese attack on Pearl Harbor.

After the war, Stevens used the GI Bill to go to the Northwestern University School of Law, where he graduated first in his class. He spent a year as a clerk at the Supreme Court and worked for a House subcommittee before returning to Chicago to practice law. President Nixon appointed him to the U.S. 7th Circuit Court of Appeals in 1970. When Douglas retired from the Supreme Court five years later, U.S. Atty. Gen. Edward Levi, the former dean of the University of Chicago Law School, recommended Stevens.

USC law professor Susan Estrich was one of his first clerks. “I was a little worried that he’d be sort of conservative for me, given that he was a Ford appointee,� she recalled. The National Organization for Women had opposed his confirmation, she said. “The joke is that these many years later, when I say I worked for Stevens, people say: ‘Oh, of course, the liberal’ -- which is not how he or I or anyone else saw it at the time.�

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