Of Justice Stevens’ 35 years on the Court, the past 15 years have been the most significant.
For those 15 years, John Stevens has essentially been the Chief Justice of the Liberal Supreme Court. In 1994, at the age of 74, he became the senior Justice on the Court, and for that time he has functioned very effectively as the leader of the liberals on the Court.
As senior Justice, he has had the power to assign opinions whenever the Chief Justice was in dissent. Thus, when Justices Stevens, Souter, Ginsburg and Breyer had the support of Justices O’Connor or Kennedy, Stevens controlled the assignment of opinions, a power he used with great skill.
Sometimes he assigned the opinion to himself, as he did in Hamdan v. the United States. But more important were the cases in which he gave up the privilege of writing the opinion in landmark cases in order to secure and shaky majority. In Grutter v. Bollinger, he assigned the opinion upholding Michigan Law School’s affirmative action program to Justice O’Connor whose uncertain vote was critical to the 5-4 majority.
And it was particularly selfless for Justice Stevens to assign the historic gay rights opinion in Lawrence v. Texas not to himself but to Justice Kennedy. History most often remembers Justices for the famous majority opinions they write, and Stevens could have chosen the honor of writing Lawrence for himself. Assigning the opinion of the Court to Justice Kennedy may have had the virtue of securing a majority.
(It is also possible that Kennedy was solid all along and Stevens just wanted to give the honor of this historic opinion to a colleague, and if that is the case, it shows how generous and selfless he can be.) — Walter Dellinger