Any assessment of Justice Stevens has to start with the man – unfailingly courteous, both off the bench and on (Justice Stevens sometimes seemed almost to apologize for interrupting an advocate to ask a question during argument); not an ounce of self-importance; entirely comfortable in his own skin; and in remarkable physical and mental shape for someone about to turn 90. I argued my first case in the Supreme Court 25 years ago – Justice Stevens looks just as fit and if anything is sharper in his questioning than he was then. I’m quite sure I can’t say the same thing about myself.
The Justice’s role on the Court saw a remarkable evolution during his 34 years. In the first part of his tenure, Justice Stevens was something of a maverick, taking his own often quite distinctive path to resolving numerous legal issues. A mark of Justice Stevens’ approach then is the large number of separate opinions he wrote each year. In the 1980 Term, for example, when most Members of the Court wrote twice as many concurring and dissenting opinions as opinions for the Court, Justice Stevens wrote almost four times as many separate opinions as he wrote opinions for the Court.
After the retirements of Justices Brennan and Marshall, however – and even more so after Justice Blackmun left the Court, Justice Stevens worked to forge alliances with more conservative Members of the Court. He had many notable successes – in the Court’s recent series of decisions related to the war on terror; in limiting federal preemption of state law (Wyeth v. Levine); upholding federal campaign finance laws (McConnell v. FEC); and in the environmental area (Massachusetts v. EPA). Of course, he also has had some significant losses – for example, on school desegregation (Parents United); the Second Amendment (Heller); and campaign finance (Citizens United).
That role will now fall to Justices Ginsburg and Breyer. And only time will tell whether they will be able to reach out to other members of the Court with the same skill and effectiveness as Justice Stevens. — Andrew Pincus