Federal Courts and Nominations

Justice Stevens Holds On to Key Role at High Court


U.S. Supreme Court Justice John Paul Stevens
Rick Kopstein / New York Law Journal

Six weeks shy of his 89th birthday, Supreme Court Justice John Paul Stevens is not, repeat not, winding down. After the last two weeks, gearing up might be the better term.

On March 4, Stevens announced the top business decision of the term, a testament to his still-sharp persuasive skills.

The day before, he dominated an oral argument on judicial ethics. And the week before that, he made news when he told a public forum the next justice should be sworn in at the Court, not the White House, to symbolize judicial independence. President Barack Obama, take note.

It all contributed to the sense that in spite of his age, Stevens is far from done with his 33-plus-year tenure and still draws fresh strength from winning cases and making his mark on a divided Court.

“He is in another ascendancy, like after Bush v. Gore” in 2000, says Bill Barnhart, a former Chicago Tribune columnist whose biography of Stevens is due out later this year. “I see no diminution in his abilities.”

Stevens’ vigor is physical as well as intellectual. He still plays tennis and golf year-round — he spends much of his off-bench time at his home in South Florida — with the competitive zeal and enthusiasm he brings to his work on the Court, friends say. When he appeared on the bench last year with a bandaged hand, he told friends he had cut himself opening a can of tennis balls during a set he played that morning, before the Court session began.

Stevens’ staying power may give the lie to long-running predictions that he will retire soon. While Stevens has dismissed the notion, some friends theorize he hopes to remain on the Court into 2011, when he would break the record for longevity set by William O. Douglas, who served 36 years and seven months until Stevens replaced him in December 1975. In early 2011, Stevens would also surpass Oliver Wendell Holmes as the oldest sitting justice in history.

“Justice Stevens is sharper than he has ever been, and he has always been sharp,” says Skadden, Arps, Slate, Meagher & Flom partner Clifford Sloan, a former clerk who shared the stage with Stevens on Feb. 26 when Stevens made the comment about oath-taking at the Court. “He is clearly at the top of his game.”

Adds Diane Amann, a former clerk who is also working on a Stevens biography, “He is fully engaged and excited. He really enjoys his work, and he likes to win.” A professor at UC-Davis School of Law, Amann talked with Stevens recently in connection with a conference she held March 6 on Stevens’ jurisprudence. He taped welcoming remarks.


Stevens was a big winner March 4 when he crafted a majority that included Justice Anthony Kennedy and, at least in the result, Clarence Thomas, in Wyeth v. Levine (pdf), a major ruling on the interplay between federal regulation and state tort suits. He said the federal law governing drug labeling did not pre-empt state suits — a major defeat for the pharmaceutical industry and other businesses seeking one federal rule rather than the unpredictability of juries in 50 states.

It was an example of Stevens’ “opinion-writing magic,” says Doug Kendall of the liberal Constitutional Accountability Center, weaving together precedents by liberal and conservative justices in a way that attracts votes. Wyeth was yet another opinion, Kendall says, that suggests Stevens will be remembered “mainly for the work he has done since his 80th birthday. He has emerged from the shadows of his liberal predecessors.”

Stevens’ aggressive questioning during oral arguments in Caperton v. A.T. Massey Coal Co. on March 3 was just as telling a sign of his enduring power within the Court. The plaintiff in the case asked the justices to establish a constitutional rule that would tell elected state judges when they should recuse in cases involving campaign donors. Several justices seemed sympathetic toGibson, Dunn & Crutcher‘s Theodore Olson, who argued such a rule was needed for the sake of “the respect that we need to have for the judicial system.”

But by the time Andrew Frey of Mayer Brown rose to argue against a recusal rule, it was also clear that Chief Justice John Roberts Jr. would likely be on Frey’s side. That meant that if Stevens could command a majority in favor of a recusal standard he, as the senior justice in the majority, would get to write or assign the opinion.

Consciously or not, Stevens seemed energized by that prospect.

When Frey asserted that the mere appearance of judicial bias could never raise a due process issue, Stevens was incredulous. Referring to the facts of the case — a coal company CEO donating $3 million to the campaign of a candidate for the West Virginia Supreme Court while a major appeal by the company was heading to the court — Stevens said sharply, “We have never confronted a case as extreme as this before. This fits the standard that Potter Stewart articulated when he said, ‘I know it when I see it.'” That was a reference to Justice Stewart’s famous 1964 definition of obscenity in Jacobellis v. Ohio.

When Justice Antonin Scalia dryly noted, “I don’t think we adopted his principle, did we, in the obscenity area?” Stevens’ retort was, “The question is not whether we have, but whether we should.”

Stevens did not let up. When Frey again said appearances don’t rise to the level of a due process concern, Stevens said, “Why not?” As Frey began to answer, Stevens interrupted, “You don’t think the community’s confidence in the way judges behave is an important part of due process?” Frey held to his position, but he was on the defensive.

The Caperton case pushed several buttons for Stevens. Like other justices, Stevens has voiced concern about electing state judges. “It would be wonderful if we had fewer elected judges,” Stevens said at a University of Florida Levin College of Law forum last November.


But Stevens has another personal connection to the judicial ethics issue. Before he became a justice in 1975, Stevens came to public prominence in Illinois as chief counsel to a commission that investigated alleged improprieties on the Illinois Supreme Court. In a foreword to a 2001 book by Kenneth Manaster on the scandal, Stevens wrote that his experiences “influenced my work as an appellate judge.”

At his public appearance in Washington, D.C., at the Newseum, Stevens also drew on his past in urging that new justices be sworn at the Court. President Gerald Ford traveled to the Court to see Stevens sworn in, he recalled. “The justice is [then] on his own, independent of the administration.”

Stevens has been more and more willing in recent years to speak publicly and discuss his own past, friends say. But it’s not a valedictory, Amann says. “He remained private for so many years. We saw his authority coming into public view when Chief Justice Rehnquist was ill and he presided over the Court. We saw it in his leading role in the Guantanamo cases.

Now, I think, he has a level of comfort about his own status.”


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