Sabato's Crystal Ball

Justice John Paul Stevens’ Supreme Court Odyssey

From Gerald Ford Republican to Barack Obama Democrat

Barbara A. Perry, Guest Columnist April 15th, 2010

During my first meeting with Justice John Paul Stevens in his Supreme Court chambers back in 1985, he impressed me with his charming modesty, Midwestern common sense, keen intellect, and judicial temperament. All of these traits, which he applied so skillfully to this work on the Court over the last thirty-four years, will make him a tough act to follow for President Obama’s second nominee to the nation’s highest tribunal. Justice Stevens’ independence defies facile ideological labels. Just when it seemed that he had crossed over the Court’s center line and joined the liberal bloc for good, he would veer back toward his self-perception as a judicial conservative.

Stevens’ ideological flexibility has its roots in his early life and career. Educated at the University of Chicago and Northwestern Law School, rather that the Ivy League, he clerked for another Midwesterner, U.S. Supreme Court Justice Wiley Rutledge, an FDR appointee and distinguished civil libertarian. Stevens labels Rutledge one of his “judicial heroes.” A Stevens classmate at Chicago, Charles Percy, who became a moderate Republican U.S. Senator from Illinois, called Stevens to his office in 1969 and told him that he would like to suggest his name for the U.S. Court of Appeals. Percy told Stevens that the nomination would be easier if he were a Republican. Stevens replied that he came from a Republican family but had never run for office, so his partisan label was not public knowledge. A prominent Chicago lawyer once described Stevens as “almost a nonpolitical animal.” In 1970 another Republican, President Richard Nixon, nominated John Paul Stevens to the Seventh Circuit.

Judge Stevens’ opinions on the Court of Appeals were generally pragmatic, moderate, and imaginative. Some of his more conservative decisions, however, caught the attention of President Gerald Ford’s administration as they searched for a nominee to replace Justice William O. Douglas in 1975.
Stevens met President Ford for the first time only a few days before the nomination at a White House dinner for the federal judiciary. The president called him at the end of the week with the stunning news of his selection. Stevens notes simply that he was a “noncontroversial, Midwestern, appellate court judge.” The lack of controversy that marked Stevens and his career was indeed determinative. The White House desired a smooth confirmation to place Ford’s nominee on the Supreme Court before the 1976 presidential election.

In announcing Stevens’ nomination to the public on November 28, 1975, Ford called the circuit court judge “the best qualified [candidate]. . . . Judge Stevens is held in the highest esteem by his colleagues in the legal profession and the judiciary and has had an outstanding career in the practice and teaching of law as well as on the federal bench.” During the three days of hearings before the Senate Judiciary Committee, Judge Stevens asserted that he would follow the same policy of “judicial restraint” on the Supreme Court that he had adhered to on the court of appeals, where his opinions demonstrated respect for established procedures rather than for any particular ideology. The Judiciary Committee approved him unanimously, as did the full Senate.

Stevens’ confirmation, coming just sixteen days after President Ford officially submitted his name to the Senate, would be among the last in the final quarter of the twentieth century to sail so easily through the selection process. On December 19, 1975, John Paul Stevens, at age fifty-five, took the oath of office to assume the ninth seat on the Supreme Court.

Stevens’ initial voting patterns pleasantly surprised civil libertarians, yet his persistent junior status and frequently idiosyncratic perception of the law diluted his impact on American jurisprudence. In 1994, however, he became the most senior justice, allowing him to write the majority opinion or assign it to a colleague if the chief justice voted with the minority. One year later he thwarted the state term-limits movement by asserting federal power to maintain uniform election rules. Stevens often checked presidential power, as in his 1997 decision to allow Paula Jones to sue incumbent president, Bill Clinton, for sexual harassment. Justice Stevens inaccurately predicted that the suit would not distract the chief executive, failing to anticipate Clinton’s impeachment following Kenneth Starr’s investigation. In 2004 a Stevens-led majority asserted the authority of federal judges to determine the legality of President George W. Bush’s indefinite detention of non-American terror suspects captured abroad and held at the Guantanamo Bay prison. Two years later Justice Stevens voided Bush’s military commissions to try accused terrorists.

Although rarely recognized in public, Stevens’ 2005 ruling that allowed the City of New London, Connecticut to take private property for “economic development” under the 5th Amendment sparked a public uproar. So did another majority opinion that he did not write, but which he assigned to Justice Anthony Kennedy. In 2003 he attracted Kennedy’s swing vote to invalidate state laws banning sodomy and affirm the right of privacy for homosexual conduct among consenting adults. History will surely recognize Justice Stevens for two dissents: in Bush v. Gore, where he saw no need to stop the presidential vote recount in Florida, and in Citzens United v. FEC, where he vigorously denounced corporate funding of political ads.

As Stevens prepares to leave the Court, more than two-thirds of his nearly 3,000 opinions that can be assigned an ideological label reflect a liberal stance. He has most reliably maintained a left-of-center posture in gender rights, abortion, and church/state cases. His record is mixed, however, in affirmative action, religious freedom, free expression, and criminal rights decisions. Nonetheless, in his last years on the bench he agreed most often with liberal Justices Ruth Bader Ginsburg, David Souter, and Stephen Breyer. And his decision to leave the Court in advance of the 2010 mid-term elections clearly reflected a desire to give President Obama a smoother path to appointing Stevens’ successor.

Approaching his 90th birthday, Justice Stevens admits that he never dreamed he would serve for almost 35 years on the high bench. He has confirmed President Ford’s observation that “[f]ew appointments a president makes can have as much impact on the future of the country as those to the Supreme Court.” Stevens has already written his valedictory: “I just hope people will make their judgments based on what my written opinions say, and not on what people say they say. There’s a long record there, and an awful lot of words. I just hope they say he did the best could.” He claims that his proudest achievement, however, is throwing the first pitch at a Chicago Cubs baseball game several years ago! The fit octogenarian got the ball from the mound to the catcher, though Justice Stevens admits the pitch was “high and outside.” Hmm. Left or right of the plate?

Barbara A. Perry is the Carter Glass Professor of Government at Sweet Briar College in Virginia. For more analysis of Justice Stevens’ life and judicial career, see “The Supremes”: An Introduction to the U.S. Supreme Court Justices, 2d ed., available on her Web site: www.baperry.com. You can also follow her on Twitter: @tweetbriar