At the Supreme Court's tipping point

November 25, 2007|By David G. Savage | David G. Savage,Los Angeles Times

WASHINGTON -- Justice John Paul Stevens, 87, became the second-oldest justice in the Supreme Court's history this month. Only Justice Oliver Wendell Holmes, who retired at 90 in 1932, served to a greater 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 Gerald R. 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 has also 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.

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.

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.

David G. Savage writes for the Los Angeles Times.

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