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Retiring Justice Stevens was maverick turned pragmatic leader

This article first appeared in the St. Louis Beacon, April 9, 2010 - Justice John Paul Stevens could go down in history as one of the most outstanding justices of the last half century, but his retirement is unlikely to make an immediate change in the direction of the court.

That was the view of St. Louis area legal experts after Stevens announced his retirement Friday, less than two weeks before his 90th birthday.

"Justice Stevens will be considered one of the outstanding justices of the last half century," wrote Joel Goldstein, a professor at Saint Louis University Law School. Goldstein cited Stevens' important opinions for the court striking down term limits and reaffirming Congress' broad commerce power, a decision that "checked the federalism revolution of the Rehnquist Court."

Stevens also was successful in attracting Justice Anthony M. Kennedy's vote, tipping the court to the liberal side in key decisions, Goldstein wrote. At times, to keep Kennedy in the majority, Stevens would assign him to write close decisions, such as the one overturning state sodomy laws.

Stevens was a prolific writer who wrote first drafts of his opinions and more dissents and separate concurrences than any other justice on the court. Goldstein noted, "His statement in Bush vs. Gore in which he lamented the damage to the Court as an institution by the majority's opinion will be among his most quoted and significant statements."

Although often referred to as the liberal leader of the court, Stevens does not consider himself liberal and emphasized that his legal decisions did not reflect his political views. His often criticized decision upholding New London, Conn.'s authority to use eminent domain for a private development, was a legal judgment, not a political one, he said.

Gregory P. Magarian, a former Stevens clerk and law professor at Washington University, calls Stevens a "pragmatic populist."

"Stevens always has been very focused on what a Supreme Court decision is going to do to an ordinary person," he said in a statement. "He has never written an opinion just to make a point or put on a show."

Who should replace Stevens?

Nevertheless, Stevens' replacement by a similarly liberal-to-moderate justice will have little immediate effect on the direction of the court, legal scholars said.

"The short-run impact is likely to be small because the conservative majority is currently setting the agenda," wrote Ron Levin, professor at Washington University Law School. "Over the longer run, the next justice will be influential in setting the agenda for issues that are not even on the horizon yet."

It is widely reported that three leading candidates to replace Stevens are Solicitor General Elena Kagan, 49, and federal appellate Judges Merrick Garland, 57, and Diane Wood, 59.

"Any of the three candidates whose names were recently leaked -- Kagan, Wood, Garland -- would be superb," wrote Levin. "I served with Garland on the council of the ABA Section of Administrative Law and Regulatory Practice. He is a sophisticated, thoughtful and articulate jurist. The D.C. Circuit specializes in administrative appeals, and his mastery of that intricate field is clear."

Goldstein urged the president to look for an intellectual heavyweight. "The court could use a great justice who would provide the intellectual firepower on the left to respond to arguments from the (John G.) Roberts-(Antonin) Scalia-(Clarence) Thomas-(Samuel) Alito wing," he wrote.

Harold Hongju Koh, former dean of Yale Law School, would be a good choice, Goldstein wrote. "By virtue of his intellect, leadership and character, (Koh) could enhance the Court and emerge as one of the great justices in the Court's history. The attacks on him when he was nominated for legal adviser of the State Department, which distorted his views and record, reflected a shameful effort to tarnish his reputation to preclude his appointment."

Any nominee by President Barack Obama is almost certain to run into strong opposition from Republicans in the Senate, particularly in an election year. Most Republicans opposed Justice Sonia Sotomayor last year, just as most Democrats, including Obama, opposed Alito when he was nominated by former President George W. Bush.

A major decision for Republicans will be whether to filibuster. Goldstein wrote, "Other than 1968 when the Republicans filibustered the (Abe) Fortas nomination, I don't believe a Supreme Court nominee has been filibustered. And that situation was unusual -- a presidential election year in which (Richard M.) Nixon seemed the likely winner. The Democrats didn't filibuster the Thomas nomination, and he was confirmed 52-48, or (Alito's nomination). Will the Republicans use or flex the nuclear option?"

The nuclear option was the term used during the debate during the Bush administration about the propriety of using the filibuster to stop a judicial nomination. At that point, many Republicans wanted to declare that the filibuster out of bounds for judicial nominations, while many Democrats asserted it should be available in extreme cases.

Obama could take another direction and name a politician, such as Sen. Amy Klobuchar, D-Minn., Michigan Gov. Jennifer Granholm or Secretary of State Hillary Rodham Clinton. Many legal experts have criticized appointments in recent years for centering almost entirely on federal appeals court judges, who have little background in the give-and-take of the legislative decisions they often are reviewing. Historically the nomination of a senator almost ensured confirmation, but that clubby norm may be out the window in the 21st century.

Most of those mentioned for the court are women. That could be significant for several reasons. The court never has had three women. In addition, the senior justice on the liberal bloc will be Justice Ruth Bader Ginsburg. As the senior justice, Ginsburg would take over from Stevens the authority to assign opinions when she and the chief justice are on opposite sides. That is an important leadership role.

Three of the four justices on the liberal side of the court could be women after Stevens is replaced, with the fourth Justice Stephen Breyer. It will be interesting to see if Ginsburg will have as much influence as Stevens has had, or whether the somewhat younger and more vigorous Breyer will end up as the leader of the liberals. Breyer is 71 and Ginsburg 77.

Ginsburg showed, however, plenty of fire when she wrote strong opinions on the admission of women in the Virginia Military Institute, strip-searches of high school girls and equal pay for women and abortion rights. If the liberal bloc has three women, it may be even more likely that Ginsburg will exert the leadership role.

One background issue that may attract attention is that Stevens was the last Protestant on a court that once was all Protestant and later was viewed as having one Catholic and one Jewish seat. Now the court has six Catholics and two Jews with most of the top candidates either Catholic or Jewish. Kagan and Garland are Jewish and Granholm is Catholic. Nevertheless, the Constitution is clear that there may be no religious test for office.  


No stereotypical liberal


During the first two decades of Stevens' 34-year tenure on the U.S. Supreme Court, the sharp, witty justice with the bow tie was considered an independent-minded maverick with moderate and somewhat idiosyncratic views.

During the last part of his tenure, after he assumed greater power as the most senior justice of the moderate-to-liberal wing of the court, Stevens became known as the leading liberal of the court.

That latter image may partly be due to the inevitable caricatures that the media create to explain the court and partly to the fact that most of the justices appointed after him were more conservative. Stevens pointed out that every appointment after him -- except possibly the appointment of Justice Ruth Bader Ginsburg -- featured a more conservative justice replacing a more liberal one.

Mark Sableman, a media lawyer at Thompson Coburn, thinks it's odd that Stevens got the reputation as a liberal. He wrote in an email: "I remember being in law school in Washington in the late '70s and talking to Supreme Court clerks, including his, and Stevens was considered very independent minded, partly because of his working style (doing his own first drafts, having fewer clerks than the other justices for a number of years), partly because of the substance of his decisions.

"I think it is odd that he is now uniformly described as a 'liberal.' In fact, he is an independent thinker, as he has always been, but the contrast with the almost rigid ideological conformity of the most conservative judges makes his independence come off as 'liberal.'"

Magarian, who clerked for Stevens, watched his transition from maverick to leader.

Stevens "was junior for a very long time," said Magarian. "And in those years he became known as quirky, as sort of a maverick as...someone who was very, very smart, had interesting ideas but really did nothing to try to forge coalitions around those ideas."

But when Justice Harry Blackmun retired in the mid-1990s, Stevens became the most senior member of the moderate-to-liberal wing and began forging coalitions, Magarian said.

Those who plaster the liberal label on Justice Stevens forget that he was not always predictably liberal. The World War II veteran passionately dissented when the court ruled that the First Amendment protected flag-burning. He ruled against contractor set-asides and affirmative action programs set up like quotas. And he ruled that the Federal Communications Commission could punish a broadcaster for programming George Carlin's "Seven Dirty Words" monologue during the day.

In that latter case, he penned this memorable language: "We simply hold that when the commission finds that a pig has entered the parlor, the exercise of its regulatory power does not depend on proof that the pig is obscene." 

More recently, however, Stevens wrote that the FCC had misinterpreted his Carlin decision when it fined broadcasters for "fleeting expletives." He also was an outspoken champion of free speech on the internet, authoring a 1997 opinion striking anti-indecency provisions of the Communications Decency Act because of their overbroad restrictions on which adults could view on the net.

He was positively rhapsodic about the net when he wrote: "Through the use of chat rooms, any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox. Through the use of Web pages, mail exploders, and newsgroups, the same individual can become a pamphleteer."

Stevens did not buy the "money equals speech" characterization that the court has applied to campaign finance law for the past 35 years. To Stevens, money was property, which meant that Congress could regulate it more thoroughly than it can regulate speech.

Along with Justice Sandra Day O'Connor, Stevens was instrumental in upholding the McCain-Feingold campaign finance law. But that handiwork is being undone by the current Supreme Court, which recently opened the door to political media campaigns funded with corporate money.

Stevens strong, but slightly confused dissent to that decision early this year, fueled talk that he would soon step down from the court. Stevens himself told the New York Times that he was surprised he had trouble that morning with his spoken dissent, attributing it to being tired from getting up early to write his remarks and to play tennis.

Sableman, the media lawyer, wrote that he sometimes disagreed with Stevens' First Amendment ideas, but thought they had been influential and bore up well over time.

"It is true that on First Amendment issues he has had some unusual ideas," Sableman wrote. "Stevens is sometimes criticized for rejecting simple rules focused on whether or not a regulation involved viewpoint discrimination, and for looking at the particular justifications for regulation within each medium. But his views, while farther from what some of us absolutists would desire, may have foreshadowed and laid the groundwork for the more complex and sophisticated first amendment doctrines that are needed for all of the complexity of modern expression."

Stevens was one of the justices who voted to strike down broad affirmative action programs that he viewed as quotas, including the University of California at Berkeley's program in the famous Bakke case. He also voted against set asides for minority contractors where he thought the programs were not carefully drawn.

But, more recently, he voted to uphold the Michigan Law School's narrowly drawn affirmative action program and he strongly criticized the current court for striking down race-based enrollment plans in public school districts.

Stevens and the Commerce Clause

Stevens had a key role in stopping two conservative movements -- the national movement for term limits and the court's move toward limiting Congress' commerce power.

He wrote the 5-4 decision striking down state laws that set term limits on members of Congress. The decision came at a time when those laws were spreading across the nation. Magarian says, "This decision was a major statement about federalism and national unity."

Stevens also came down on the national side of division on the Supreme Court about where congressional power ends and state power begins.

Beginning in 1995, Chief Justice William H . Rehnquist led a counter-revolution that narrowed Congress' power to regulate interstate commerce. Because this is one of Congress' most potent legislative tools, the Rehnquist decisions appeared to be the start of a movement toward greater states' rights and less federal power.

But Stevens appeared to bring an end to that counterrevolution in the 2005 Gonzales vs. Raich decision, once again recognizing broad congressional power to regulate commerce. Even six little marijuana plants cultivated by one user of medical marijuana in California qualified for federal regulation and could be banned by Congress, Steven held.

Perhaps the move memorable words that Stevens wrote, however, were in his dissent to the Bush vs. Gore decision, ending the Florida recount and essentially awarding the presidency to George W. Bush.

Stevens wrote, "It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. Time will one day heal the wound to that confidence that will be inflicted by today's decision. One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year's presidential election, the identity of the loser is perfectly clear. It is the nation's confidence in the judge as an impartial guardian of the rule of law."

Sableman wrote that Obama should look for a replacement with the kind of independence Stevens exhibiting. He wrote:

"Obama as a constitutional lawyer should be very conscious of the need for flexibility and independent thinking and hence should appoint someone who has some of the Steven's independence and freshness, although their certainly will be pressures to balance the conservative justices with their fairly rigid ideology. In the long run, fresh and independent-minded thinking by justices makes a far greater impact on the development of the law than rigid ideological thinking. For example, in their joint tenure, I think Stevens has been far more influential on the development of first amendment law than Scalia. 

William H. Freivogel is director of the School of Journalism at Southern Illinois University Carbondale and a professor at the Paul Simon Public Policy Institute.