Stevens likely to decide soon on retirement

Supreme Court justice may step down before next term

April 04, 2010|By Robert Barnes | The Washington Post

FORT LAUDERDALE, Fla. — — Around here, one of the most powerful men in the nation is known as plain old John Stevens. But those who cross paths with him in his second home of South Florida have the same question as the president of the United States, the leadership of Congress, abortion-rights combatants, disgruntled conservative legal activists and grateful civil libertarians, all of whom know him as Justice John Paul Stevens.

"Do you think he's going to retire?" asks his friend Raymond Doumar, 83, who met Stevens years ago while waiting for a tennis match.

Stevens, who turns 90 this month, isn't quite ready to say. "I can tell you that I love the job, and deciding whether to leave it is a very difficult decision," he said. "But I want to make it in a way that's best for the court."

That would mean a decision sooner rather than later, in time for the nomination and confirmation process to be completed before a new term begins in October, he said. He acknowledged that he had told a reporter early last month that he would decide in about 30 days, but laughed that he hoped "that wasn't being treated as a statute of limitations."

Whether it is this year or next, he said, he will hand President Barack Obama his second chance to leave a lasting mark on the Supreme Court. "I will surely do it while he's still president," Stevens said.

If he stays past this term, Stevens would remain on course to become the oldest and longest-serving justice. Paradoxically, he is also among the court's least-known members; in a poll taken last summer, only 1 percent of Americans could summon his name.

His departure will mark a significant shift in the workings of the politically divided court. Obama would likely choose a nominee from the left to replace him, so the ideological balance would not change.

But Stevens' lack of recognition stands in contrast to his prominence on the court. For nearly 15 years, he has served as the leader of the court's liberal wing. His ability to find common ground with the court's justices in the middle - former Justice Sandra Day O'Connor and Justice Anthony M. Kennedy - has led to groundbreaking decisions in favor of gay rights, restrictions on the death penalty, preservation of abortion rights and the establishment of a role for the judiciary in the nation's fight against terrorism.

His departure also would mark a generational change. Stevens was in the stands when Babe Ruth hit his "called shot" home run in the 1932 World Series. He is the only justice who was around for the start of the Depression, or who lived through Prohibition. He cracked Japanese code during World War II.

His experiences pop up in opinions. This term brought a reference to "Tokyo Rose."

"In a broad sense, the court's decisions help to tell, and record, the nation's history," said Gregory Garre, who served as solicitor general under President George W. Bush. "There is often an added sense of legitimacy, and even color, when the justices write about the history that they actually lived through. And it's amazing to think of all the history that Justice Stevens has lived through."

Stevens has cordial relations with the other members of the court, but doesn't frequent the Washington party circuit and gives few speeches outside an annual talk to the judges of the U.S. Court of Appeals for the 7th Circuit in Chicago. That is where he grew up, and he was a circuit judge there when President Gerald R. Ford tapped him for the Supreme Court in 1975.

It is notable that he is one of the last justices whose ideology was not a major part of the calculus that led to his nomination. He was confirmed unanimously by the Senate only 19 days after his nomination.

The lack of controversy may be one reason he has never been firmly established in the public's mind. And for a time, his votes fit a moderately conservative pattern, though he often struck out on his own in the legal reasoning he used to get to a result.

"He was known mostly as being idiosyncratic for many years," said Michael Gerhardt, a University of North Carolina law professor. "But as time went on, roughly in the last decade or so, he made a very conscious, very deliberate decision to take on a leadership role."

As the senior justice, Stevens has the power to decide which justice writes the opinion when the chief justice is not in the majority. It is that ability to shape historic outcomes, rather than a distinct judicial philosophy or strength of personality, that has marked Stevens' tenure, said Richard Garnett, a Notre Dame law professor and former law clerk to then-Chief Justice William H. Rehnquist.

"He was the senior justice for a bloc on the court, the liberal bloc, that was stable for an unusually long period," Garnett said. "And by being the senior guy, he was able to control the crafting of the court's judgments in a bunch of hot-button issues."

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