Stevens, asked if he regrets any recent Court decisions, says, “There are a lot I’m very unhappy with.” Photograph by Steve Pyke.
Supreme Court Justices are remembered for their opinions, but they are revealed by their questions. For many years, Sandra Day O’Connor chose to open the questioning in most cases, and thus show the lawyers—and her colleagues—which way she, as the Court’s swing vote, was leaning. Today, Antonin Scalia often jumps in first, signalling the intentions of the Court’s ascendant conservative wing, and sometimes Chief Justice John G. Roberts, Jr., makes his views, which are usually aligned with Scalia’s, equally clear. New Justices tend to defer to their senior colleagues, but Sonia Sotomayor, in her first year on the Court, has displayed little reluctance to test lawyers on the facts and the procedural posture of their cases; these kinds of questions had generally been the province of Ruth Bader Ginsburg, who, at times, has not seemed entirely pleased by the newcomer’s vigor. Samuel A. Alito, Jr., often says little; Clarence Thomas never says anything. (Thomas has not asked a question at an oral argument since 2006.)
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.”
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http://www.newyorker.com/reporting/2010/03/22/100322fa_fact_toobin?currentPage=all
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