justicestevens

What Would Stevens Do?

One person we haven’t heard from in the hubbub over replacing Justice John Paul Stevens is Stevens himself. That’s unsurprising, but not inevitable. A few words on judicial selection from this respected birthday boy—Justice Stevens turns 90 years old today— would be a gift from him to the nation.

Stevens doesn’t attend presidential State of the Union addresses. He keeps as far away from the political branches of government as he can. But there is precedent for Stevens to become engaged in the discussion of a Court nominee. The facile pundits who claim Stevens is the Court’s liberal hero or bum—depending on their point of view—overlook the fact that in 1987, Stevens publicly endorsed President Ronald Reagan’s choice of archconservative Judge Robert Bork to replace Justice Lewis Powell Jr. Stevens called Bork “a very well qualified candidate and one [who] will be a very welcome addition to the Court.” He told the audience he was addressing, “I see no reason why I shouldn’t express [my opinion] publicly.”

In my opinion, Stevens saw Bork as a peer in the law and an intellectual power who could contribute fresh ideas to Court deliberations, as he did, though probably from a different perspective. His statement on Bork’s behalf, which Bork never appreciated, testified to Stevens’s vision of the Supreme Court as non-ideological and impartial. Call it naïve, but Stevens still has that vision—more as a hope nowadays than an observation.

His belief in an independent judiciary might prompt Stevens to comment on the upcoming battle for his replacement. It’s unlikely he would publicly endorse or disapprove of a candidate, but he might seize an opportunity to throw some oil on the roiling political waters. — Bill Barnhart

More on Stevens and Religion

Like the skilled reporter she is, Nina Totenberg, NPR's Supreme Court correspondent, enlivened the discussion about the U.S. Supreme Court on April 7 by noting that Justice John Paul Stevens is the only Protestant on the Court. Six Catholics and two Jews sit on the Court. When Stevens retires, Totenberg wondered aloud, will finding a Protestant candidate for his seat be important? Not too many years ago, people talked openly about a Catholic seat or a Jewish seat on the Court. The notion of a single Protestant seat is remarkable, at least historically. The New York Times’ Adam Liptak picked up this theme on Sunday, April 11, and I believe others will follow.

This angle on the Stevens retirement coverage is likely to find traction in the major media, simply because it has the elements of pointless score-keeping and visceral reactions that give any news story traction. As Totenberg's sources pointed out, there is no evidence of faith-based bias on the Supreme Court. But that won't stop pundits from suggesting as much.

For example, the gross stereotype of a Catholic is that he or she is governed by immutable rules and prefers life in a rules-based structure. Is this true of the Catholic justices Roberts, Scalia, Kennedy, Thomas, Alito and Sotomayor? Who knows? Can you draw a parallel between Scalia's rules-based religion and his rules-based assertions of tradition and textual purity in the Constitution? Who knows? Both of Justice Stevens's wives were raised in the Catholic church. His children attended Catholic schools. Was he half-Catholic? No, but who cares?

Still, the "Protestant seat" angle could stir up a sensational controversy about church and state. Indeed, one of the few attacks ever made against Justice Stevens is that his opinions display "hostility to religion," as one law professor put it in 1990. This viewpoint was rekindled recently by Edward Whelan, writing for the National Review web site: “In every major establishment-clause case during his three decades on the Court, Stevens has concluded that government policies that accommodate or support religion are unconstitutional, even if they are an excepted part of our political and cultural heritage.” To that, I say, “Thank God.” In my opinion, Stevens is no more or less hostile to religion than the founding fathers who wrote the First Amendment, separating religion from the state. Stevens's certainly doesn't believe in faith-based law. One of his best statements in that regard is his dissent in the 1990 case of Nancy Cruzan v. the Director of the Missouri Department of Health, a right-to-die case. Some of his writing in abortion cases questioned the propriety of injecting sectarian religious doctrine into interpretations of law.

The primary message of the “lone” Protestant angle is this: Religion is public life is a divisive unrewarding controversy with nothing to be gained for the nation in any aspect of the debate. Over the years, the Supreme Court has been the focus of this debate, especially on the issue of prayer in the public schools. Despite all the concern about a liberal-conservative divide on the Court, we should celebrate the fact that the Court is one institution of government where religious affiliation barely has been noticed, until now. — Bill Barnhart

Stevens and Religious Diversity

A word about the importance of religious diversity in replacing Justice Stevens, now the Court’s only Protestant justice. Though there’s been some agonizing on the subject, it actually seems pretty straightforward to me: If we care about other kinds of diversity on the Court, then we should care about religious diversity, as well.

Over the past 25 years or so, we’ve seen the emergence of a new (or newly restored, some would say) legal and cultural understanding of religion, driven in part by the insight that for many believers, religious faith isn’t a private “hobby” that can be relegated to the home and church; rather, religious belief and identity are integral parts of a person, necessarily and appropriately informing public roles and the public sphere. It should follow that judges’ world views will be inflected, in rich and complicated ways, by their religious backgrounds and beliefs, just as they will by gender and race and socioeconomic status, among other traditional indicia of diversity. If what we’re looking for is a diversity of life experiences and ways of thinking about the world – because that diversity strengthens and enriches the overall legal conversation – then religious diversity matters.

What seems to complicate the question is that we may care about diversity on the Supreme Court for a different reason, too. Diversity on the Court also serves an important symbolic function, making clear that legal institutions and the law itself are now open and responsive to groups that once were excluded or marginalized. And it is probably and happily true that for this distinct purpose, representation of various religious faiths on the Court is no longer a compelling need (and that representation of the traditional Protestant faith probably never was). Which means that the President might rightly feel no urgency about religious representation in making his choice of a successor to Justice Stevens. But it doesn’t mean that we shouldn’t continue to value religious diversity across the bench, for the contribution it makes to the legal discourse. — Pamela Harris

Who or What Changed?

Did Justice Stevens change or did the Court change? My co-bloggers may be interested in debating this from a doctrinal perspective. But the data seem clear: Beginning in the mid-to-late 1980s, Justice Stevens moved substantially to the left.

The graph below uses measures (http://mqscores.wustl.edu/) developed by Andrew Martin and Kevin Quinn to plot the ideology of Justices Stevens, Kennedy, and Scalia: the higher the number, the more conservative the justice.

Note Justice Scalia's slight rightward drift and Justice Stevens' more extreme movement to the left. As for the Court's center, Justice Kennedy, not much in the way of drift in either direction. — Lee Epstein

The Hardest Hypotheticals

I remember a variation on the second story, when Chief Justice Rehnquist corrected counsel for calling one of them Judge, and Justice Stevens commented: “it is an understandable mistake; the Constitution makes it, too.”

I think what distinguishes Justice Stevens from the other justices are his hypotheticals. They really force the advocate to understand the limits of his or her theory of the case.

My favorite was in NCAA v. Tarkanian, when he asked Tarkanian’s lawyer whether United Airlines would be a “state actor” for purposes of 42 U.S.C. 1983, if it told O’Hare Airport’s (a government entity) manager that United would move its planes to Midway Airport if O’Hare did not fire the O’Hare employee who was in charge of the terminal that United operated from. The lawyer stood there for more than 30 seconds saying nothing until Justice Scalia leaned forward and told him “the answer you are looking for is no.” In my judgment Justice Stevens always asked the hardest hypotheticals and he did it so gently that the effect was particularly devastating. — Carter Phillips

Three More Anecdotes from Clerks

Sonja's post inspires 3 more clerk-nurtured anecdotes, each recounted in my 2006 article, John Paul Stevens, Human Rights Judge:

• On arriving in Washington in 1975, Stevens listed his occupation as "Justice" on a form, thus drawing the retort, "OK, last week, I had a guy who said 'Peace.'"

• At an oral argument during the 1998 term, an advocate addressed a robed inquisitor as "Judge," and so provoked a withering reminder that the Court comprised "Justices." No one spoke up. But when the scene repeated itself days later, Justice Stevens, who had expressed unease at the first exchange as soon as he returned to chambers, provided this accurate citation to the U.S. Constitution: "Excuse me, but if I am not mistaken, Article III refers to us as judges."

• One time, walking into a Court reception, Stevens relieved a law clerk of the task another Justice had assigned her: serving coffee to that Justice and the other men in the room. "Thank you for taking your turn with the coffee," Stevens told her. "I think it's my turn now." — Diane Marie Amann

An Enormous Black Eye

I've really enjoyed reading the many and varied perspectives on Justice Stevens' jurisprudence and his impact on the Court. But as his former clerk and, I like to feel, as his friend, my mind since the announcement has been on some of the lighter moments we shared in chambers. One that comes to mind was the day Justice Stevens showed up in chambers with an enormous black eye. The injury was the result of an overly aggressive game of tennis in which he dove into a chain link fence while chasing a ball (he was almost 80 at the time.) We asked him what we should tell the other justices' clerks, whom we knew would be dying for information. He thought for a moment: “Tell them, ‘they should see the other guy!'” Shortly thereafter he attended a judicial conference and was again asked about the black eye. This time he replied, “that’s why they keep the conferences confidential.” — Sonja West

The last common law justice?

In the latest edition of The National Law Journal is an essay from Rodger D. Citron, an associate professor of law at Touro College Jacob D. Fuchsberg Law Center, who argues that Justice Stevens may be the last justice with a common law outlook. The full essay is at NLJ.com.

Here’s an excerpt:

“The focus on the political implications of Stevens' retirement obscures a more significant aspect to his departure: the loss of the Supreme Court's pre-eminent common law ­lawyer. Since his appointment to the Court in 1975, Stevens has decided cases in the manner of the quintessential common law judge. He generally decides cases narrowly, with careful attention to the facts of the particular case and primary attention paid to the contentions of the litigants. This approach is consistent with the common law notion that the law develops on a case-by-case basis over time.

Furthermore, although Stevens does not shy away from exercising judicial power, he nevertheless employs it in moderation, deferring to other legal decision-makers where appropriate. No other justice is as committed to the common law approach as Stevens. On the right, justices Antonin Scalia and Clarence Thomas are devout ­originalists, committed to deciding cases in accordance with their views of what the framers of the Constitution intended. Roberts — usually joined by Justice Samuel Alito Jr. — tends to be an ideological conservative. Justice Anthony Kennedy often decides cases in sweeping terms — even when the result is liberal, as in Lawrence v. Texas, which invalidated criminal laws outlawing homosexuality.

On the left, the distinctions are not as clear but are nevertheless evident. Justice Stephen Breyer often shares Stevens' views but is willing to go one step further and decide the case in accordance with his views of the appropriate policy. Justice Ruth Bader Ginsburg shares Stevens' attention to detail and nuance but tends to be more constrained about the exercise of judicial power. As for Justice Sonia Sotomayor, it's too early to tell.”

Justice Stevens' Environmental Legacy

President Obama hailed Justice Stevens yesterday as “an impartial guardian of the law.” Sadly, that amounts to a bold claim in our polarized society, with our overly political view of the courts. But it is true, perhaps illustrated best by Justice Stevens’ rulings in environmental cases.

Justice Stevens came to the Court at the dawn of the environmental movement and at a heady time for environmentalists in the courts. Stevens’ predecessor, Justice William O. Douglas, had famously argued that mountains and trees should have standing and judges on the D.C. Circuit Court of Appeals had developed a number of doctrines that allowed that court to aggressively second-guess agency decision-making to ensure that the agencies realized the broad and ambitious goals of environmental statutes.

Justice Stevens firmly rejected the idea that environmentalism was some sort of transcendental force that gave judges special powers to enforce broad statutory goals. Most famously, in Chevron v. NRDC, Justice Stevens’ wrote a majority opinion for the Court that sternly rebuked the D.C. Circuit for substituting its judgment for that of the Reagan EPA, which sought to give industry more flexibility in meeting their Clean Air Act obligations. While a bitter defeat for environmentalists, Chevron, which holds that judges must follow the law when clear and defer to agencies when they make a reasonable judgment about an ambiguous law, is rightly hailed today as a landmark of both administrative law and judicial restraint.

Those same principles – deference to the plain language of statutes and concern about judicial restraint – are the hallmarks of Justice Stevens’ two other landmark environment rulings: Tahoe Sierra Preservation Council v. Tahoe Regional Planning Agency and Massachusetts v. EPA. The Tahoe ruling, upholding land-use protections put in place to save Lake Tahoe, followed a 15-year period where the Court’s conservatives, led by Justice Scalia, had been remarkably inventive in trying to transform the Constitution’s Takings Clause into a barrier to environmental laws. Justice Stevens garnered a six-justice majority for a ruling that returned the Takings Clause to its intended role mainly in securing compensation for landowners when the government exercises its power of eminent domain.

In Massachusetts v. EPA, Justice Stevens relied Chevron and the unambiguously broad terms of the Clean Air Act in holding that EPA may regulate greenhouse gas pollution using its existing authority under the Act. This ruling has allowed the Obama Administration to aggressively combat global warming without waiting for further action by Congress.

Justice Stevens should be remembered as a great justice in environmental cases, but not because he bent the law to favor environmental outcomes, but rather because he insisted that the law itself be followed, which dictate an environmental outcome in many cases during his tenure. — Douglas Kendall

Stevens: An Eloquent Dissenter

Prior contributors have rightly emphasized Justice Stevens’ skill in cobbling together majorities. Not to be discounted are Justice Stevens’ powerful and eloquent dissents.

Especially in recent years, Justice Stevens has been a resolute defender of core democratic principles that he has deemed threatened by recent rulings. In his remarks yesterday, President Obama referenced Justice Stevens’ dissent in Citizens United a few months ago. The President indicated that his nominee will be “someone who, like Justice Stevens, knows that in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens.”

Another recent Justice Stevens dissent deserves equal attention. In 2007, the Court issued a sharply divided decision in Parents Involved in Community Schools v. Seattle School District that limited the ability of school districts to take account of race to promote diversity and address racial isolation in their schools. Dissenting, Justice Stevens lamented the majority’s attempt to “rewrite the history of one of the Court’s most important decisions” -- Brown v. Board of Education. He reiterated his long-standing “view that a decision to exclude a member of a minority because of his race is fundamentally different from a decision to include a member of a minority for that reason.”

Ignoring this distinction, the Court has in recent years drastically undermined efforts to redeem the Fourteenth Amendment’s promise of equal citizenship for all. An important part of Justice Stevens’ legacy will be his recognition that the Constitution permits, and in many circumstances demands, protection of efforts -- whether by Congress or a local school district -- to promote inclusion of all citizens in every facet of our nation’s political, social, and cultural life. — Debo Adegbile, director of litigation for the NAACP Legal Defense and Educational Fund

A Missing Word: Empathy

I think what's most interesting about President Obama's discussion of a future nominee is the quality he did not say he would look for — empathy. Clearly the President isn't going to re-ignite the controversy that erupted last year after he announced he wanted a nominee with empathy to replace Justice Souter. But the retirement of Justice Stevens highlights that this is exactly the trait we need more of on the Court. While he has lived his life as a member of the majority and privileged in almost every way, Justice Stevens has always demonstrated the ability to put himself in someone else's shoes. He could imagine how things might appear to someone who was very different than he whether it was because he or she had a different skin color, gender, religion or sexual orientation. He didn't use this ability to warp his interpretation of the law but to enhance it with the understanding that everything can look a little different based on one's perspective. I think empathy is an eminently valuable trait in a judge, and Justice Stevens had it in spades. To truly find a nominee in Stevens' mold, President Obama should once again seek out someone with empathy. — Sonja West

The Justices on Stevens

From our sibling Blog of Legal Times, a rundown of the justices' statements on John Paul Stevens and his retirement.

Criminal Procedure: An Undervalued Part of Stevens’ Legacy

I want to follow up on John's very perceptive insight about Justice Stevens' opinions in criminal cases.

I think those opinions -- sometimes holding together a fragile majority (as in the Gant case last Term) and more often in dissent -- are an important and undervalued part of the Justice's legacy. For many years, Stevens has been the Justice most often sympathetic to defendants' arguments, especially in criminal procedure cases.

Just this Term, in the two Miranda cases decided so far, he has been the only Justice to vote for a fuller understanding of Miranda protections in one, and one of two dissenters in the other. And even in dissent, Justice Stevens' opinions played an important role, ensuring that a more defendant-protective perspective, driven in part by concerns about the potential for race discrimination in law enforcement, remained a part of the legal discussion.

When people predict that Justice Stevens' replacement will leave the Court unchanged ideologically, I wonder whether they are including the Court's criminal docket in that assessment. I do not take for granted that a new Justice will be as prepared as Justice Stevens was to take a skeptical look at the exercise of government power in criminal cases. And if not, then this is one area in which Justice Stevens' absence will be felt especially keenly. — Pamela Harris

Steeped in Tradition

President Obama's statement zeroes in on the first part of Justice John Paul Stevens' one-sentence letter of resignation. Also worth considering is the letter's second part, which states that the retirement will be "effective the next day after the Court rises for the summer recess this year."

That formal phrasing hearkens to centuries of Supreme Court history, and serves as a reminder of Justice Stevens' commitment to the past, present, and future of that institution. Reflections of that commitment may be found, to cite two examples, in "Join me," the tradition-laden phrase Stevens uses to signal his own joining of a colleague's draft opinion, and in "I respectfully dissent," a standard signature on many Stevens opinions.

The commitment was evident, too, in Stevens' public statement, made just a month after the presidential inauguration of Barack Obama, that the President should come to the Court to swear in new Justices, rather than ask Justices to come to the White House.

Stevens' statement had the desired effect: upon the confirmation of Sonia Sotomayor, Obama became the first President in years to go to the Court to administer the oath to a new Justice.

Thus did Obama pay respect to Justice Stevens' view that this gesture honors values of separation of powers and judicial independence embedded in our Constitution. For a Justice steeped in the tradition of the institution he serves, the was is no small thing. As I wrote at the time: "It is on such niceties that the rule of law rests." — Diane Marie Amann

A Lesson on Assignments

Walter's post raises an interesting issue about Justice Steven's use of the assigning power to try to keep a wobbly Justice on board. He may have learned a lesson in that regard from October Term 1999's Boy Scouts of America v. Dale.

There's some circumstantial evidence that Justice Stevens was writing the majority opinion in Dale that would have held that the Boy Scouts did not have a First Amendment free association right to exclude gay scoutmasters, but lost the majority opinion to Chief Justice Rehnquist after one of the Associate Justices changed his or her vote. (Stevens had no majority opinion from that sitting; Rehnquist had two, and the other one was the majority opinion in the Miranda blockbuster Dickerson v. United States; and to my eyes at least, Stevens' dissent, with its detailed statement of facts, reads like a converted majority opinion.)

But it's unclear to me how well that works: the Blackmun papers indicate that Justice Kennedy switched sides in Lee v. Weisman while writing the majority opinion that Chief Justice Rehnquist had assigned to him. — John Elwood

Chief Justice of the Liberal Supreme Court

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

Stevens on Political Speech

Regarding the “voices of ordinary citizens,” one of the cases highlighted in John Paul Stevens: An Independent Life is Burson v. Freeman (1992). It’s a relatively obscure case concerning the power of states (Tennessee, in this case) to prohibit electioneering within a certain number of feet of polling places on election day.

You might call this case the flip side of Citizens United v. FEC. The Tennessee Supreme Court had ruled that a 100-foot no-electioneering zone around polling places was a violation of free speech. The state appealed to the Supreme Court. The result was a noteworthy and lengthy (nearly eight months) debate between Justices Scalia and Stevens (with Justice Blackmun in the middle) over tradition in law vs. pragmatism in law.

Stevens is a long-time advocate of virtually unlimited free political speech by “ordinary” Americans. Scalia, taking the side of legal tradition, argued that “restrictions of speech around polling places on election day are as venerable a part of the American tradition as the secret ballot” and therefore do not deserve or require strict scrutiny by the Court under the First Amendment. Scalia was on the side of the majority led by Justice Blackmum, to reverse the Tennessee Supreme Court. But his proposed concurrence – which seemingly granted immunity from strict scrutiny to anything labeled “traditional” -- took the case in a new direction that Blackmun thought was dangerous.

Stevens pointed out that laws limiting access to the polls historically were part of efforts to keep African Americans from voting. His point of view eventually prompted Blackmun to inform Scalia that he opposed the proposition that “a law can pass strict scrutiny because history says it does.” No-electioneering zones tend to favor the “ins” at the expense of the “outs,” Stevens wrote in his dissent. “The hubbub of campaign workers outside the polling place may be a nuisance, but it is also the sound of a vibrant democracy.” — Bill Barnhart

Stevens: From Maverick to Alliance Builder

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

Obama's Statement on Stevens

"When President Ford was faced with a Supreme Court vacancy shortly after the nation was still recovering from the Watergate scandal, he wanted a nominee who was brilliant, non-ideological, pragmatic, and committed above all to justice, integrity, and the rule of law. He found that nominee in John Paul Stevens.

Justice Stevens has courageously served his country from the moment he enlisted the day before Pearl Harbor to his long and distinguished tenure on the Supreme Court. During that tenure, he has stood as an impartial guardian of the law. He has worn the judicial robe with honor and humility. He has applied the Constitution and the laws of the land with fidelity and restraint. He will soon turn 90 this month, but he leaves his position at the top of his game. His leadership will be sorely missed, and I just had an opportunity to speak with him and told him on behalf of a grateful nation, that I thanked him for his service.

As Justice Stevens expressed to me in the letter announcing his retirement, it is in the best interests of the Supreme Court to have a successor appointed and confirmed before the next term begins. And so I will move quickly to name a nominee, as I did with Justice Sotomayor.

Once again, I view the process of selecting a Supreme Court nominee as among my most serious responsibilities as President. And while we cannot replace Justice Stevens’ experience or wisdom, I will seek someone in the coming weeks with similar qualities -- an independent mind, a record of excellence and integrity, a fierce dedication to the rule of law, and a keen understanding of how the law affects the daily lives of the American people. It will also be someone who, like Justice Stevens, knows that in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens. Much like they did with Justice Sotomayor, I hope the Senate will move quickly in the coming weeks to debate and then confirm my nominee so that the new Justice is seated in time for the fall term."

'A Stalwart' on Civil Rights

John Payton, President and Director-Counsel of the NAACP Legal Defense and Educational Fund, released this statement earlier today:

"Justice Stevens' decades on the Court will be recorded in history as one of the most remarkable legacies in recent years. Justice Stevens is known as a stalwart in his protection of civil rights and civil liberties.

For racial minorities and others who relied on the courts to secure full participation in our democracy, Justice Stevens will be missed. By waiting to retire until the age of 90, Justice Stevens surpassed any expectation of public service in the federal judiciary. We thank him for his tremendous contribution to the cause of justice and wish him a joyful retirement.”

The Search for a Bridge Builder

Gathering my thoughts on the Stevens retirement announcement today, my first concern is for what Justice Ruth Bader Ginsburg told me and my research associate, Gene Schlickman, when we interviewed her for our book in her chambers.

Ginsburg said the rift between the liberals and conservatives has widened on the Supreme Court to the point of hurting the cross-fertilization of ideas in handling cases. This is really bad news. The biggest concern of America now regarding the Supreme Court should not be whom President Obama will appoint -- there is little chance he will pick a loser -- but how to heal that rift.

Stevens has built bridges for years through the power of his intellect, his ability to discern novel approaches to legal impasses and his ability to communicate quickly, fairly and gracefully with fellow justices.

In that sense, he and his contribution to the Court cannot be replaced any time soon. Obama needs to find a skillful law practitioner who is conciliator, not an ideologue -- that's Stevens's legacy. On a practical point, Obama should start my finding someone who is skillful, incisive and quick writer of legal analysis and interpretation. — Bill Barnhart

More on Stevens and His Style on the Bench

In the heat of oral argument, it can be hard for lawyers arguing before the Supreme Court to know which Justice is addressing them. But when the Justice softly inquired, "May I ask you a question?" lawyers always knew it was Justice Stevens. For one thing, Justice Stevens did, in fact, ask questions -- real, not rhetorical, ones, designed to elicit answers and not to score debating points. For another, Justice Stevens asked his questions politely, treating the lawyers before him with courtesy and respect.

The Justice's courtly and somewhat formal manners are noteworthy in themselves; the point of good manners, after all, is to make the people around you feel valued and welcomed, and both on and off the bench, Justice Stevens had the best manners I have ever seen. But Justice Stevens' questioning at argument also revealed something deeper: the importance he attached to treating all people with respect and equal regard -- the value that animated his decisions, as well. — Pamela Harris

Stevens: A Tough Questioner

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

Re: A Litmus Test for Retirement

Todd's point is right on. In the last chapter of my upcoming Stevens's biography ("John Paul Stevens: An Independent Life"), I offer a layman's list of points to consider when nominating someone to the Supreme Court. Here it is:

"Good writers are good thinkers. Any appellate court judge who lets his or her clerks write opinions should automatically be disqualified for higher judicial office. Obtain testimony [from the candidate and former clerks] on this point. As Stevens told his law clerk Lawrence Rosenthal, 'I'll do the first drafts. Sometimes you can be totally unsure how a case is supposed to come out until you sit down and write.' Roger J. Traynor, former chief of the California Supreme Court, put it this way: 'I have not found a better test for the solution to a case than its articulation in writing, which is thinking at its hardest. A judge ... often discovers his tentative views will not jell in the writing.'" — Bill Barnhart

Personal Experiences Influenced Opinion Writing

The excellent interview with Justice John Paul Stevens in the April 4 New York Times by Adam Liptak contains several fresh, at least to me, comments by a man who rarely gives interviews and, when he does, often sticks to remarks he's made before in speeches.

For example, Stevens's thoughts on his opinion in the 2008 Baze v. Rees capital punishment case seemed, for the first time I've seen, to dispel the notion that Stevens is inching toward an absolute rejection of the death penalty as his time on the Court nears an end.

But the most interesting comment for me was his acknowledgment that his personal experiences have influenced his opinion-writing. Besides being an indirect endorsement of a biographer's labors, this comment is important for two reasons. First, Stevens's former law partner and long-time friend Edward Rothschild once told me in no uncertain terms that Steven's personal background didn't matter -- to his work as a judge or to the public. I didn't agree, of course.

But I was aware that, aside from a handful of recollections -- such as his memory of being in Wrigley Field when Babe Ruth signaled an upcoming home run to fans in the bleachers -- Stevens does not dwell on the past.

Indeed, one characteristic of a pragmatist is the tendency to look forward with optimism. The second reason Stevens's remark to Adam Liptak is important is that it signals that Stevens, who by design has been out of the public spotlight, in retirement might turn his formidable writing skills to a memoir that would inspire and instruct future generations of lawyers and judges as well as presidents and senators who have the duty to nominate and confirm federal judges. — Bill Barnhart