As the ranking liberal serving under conservative Chief Justices for the past 15-plus years, Justice Stevens has typically had the power to assign opinions whenever the Chief Justice has not.
That authority, and a strong (but not infallible) ability to hold majorities together for difficult cases, has given him the authorship of an unusual number of high-profile and noteworthy opinions during his recent tenure.
Even a very incomplete list gives an impression of the large number of significant opinions he has written: seminal administrative law cases such as Chevron v. NRDC and Massachusetts v. EPA, the intellectual property case Sony Corp v. Universal City Studios (which made clear that making individual videotapes of television programs did not constitute copyright infringement), important war on terror precedents such as Rasul v. Bush and Hamdan v. Rumsfeld, important criminal law cases such as Padilla v. Kentucky (holding that defense counsel must inform the defendant if a guilty plea carries a risk of deportation) and Atkins v. Virginia (which reversed precedent to hold it was unconstitutional to impose capital punishment on the mentally retarded), and of course Apprendi v. New Jersey (which revolutionized criminal sentencing by holding that the Sixth Amendment right to jury trial prohibited judges from enhancing criminal sentences beyond statutory maximums based on facts other than those decided by a jury beyond a reasonable doubt).
But as an advocate, the noteworthy thing about Stevens’ departure will be his absence from oral argument. He is the last remnant of the Burger Court, which, while livelier questioners than the Warren bench, were far less active questioners than the Rehnquist and Roberts Courts. Perhaps as a result (or perhaps just because he’s smart and experienced enough to figure out what truly matters), he generally asks fewer questions than most his colleagues and gives the advocates more room to speak. His departure will mean that everyone on the bench considers the norm to be the much more active questioning of recent years.
But that is not to say that Justice Stevens is not a tough questioner. To the contrary, in my experience, his questions were always among the most difficult and incisive that I had to answer. They cut to the heart of the matter and leave no room to hide. They’re made no easier although they’re asked cordially, often preceded by the request, “May I ask you this question?” To the people in the courtroom, it seems like a disarmingly humble gesture, as though the person who has been the senior associate Justice for well over a decade really doesn’t want to intrude too much at oral argument. But to those at the podium, who know he’s about to uncork one of the toughest questions of the day, it is a gut-tightening experience, as the advocate mentally reviews the toughest questions he or she has woodshedded in dread of what he is about to ask. I was always relieved when my answer to one of his questions was interrupted—as it always was—by one of his colleagues.
One other thing that has always impressed me about him was his dissents. He has frequently been the lone dissenter, particularly in criminal cases where he writes in favor of the defendant, even when the arguments arrayed against his position are so formidable that his colleagues have joined the majority and moved on. It is almost as though he feels compelled to make the best case possible on behalf of the defendant’s position, if only for the record. — John Elwood