Who Will Get the Stevens Seat?

After a 35-year run, John Paul Stevens gives Obama a second chance to reshape the court

By David Von Drehle Thursday, Apr. 15, 2010
    • Lynn Johnson / National Geographic / Corbis

    Supreme Court Justice John Paul Stevens in his office

    The retirement of Justice John Paul Stevens this summer, when he'll have turned 90, will be the end of an era for the U.S. Supreme Court, and we're not talking about just his signature bow ties. Stevens is likely the last link to a time when Presidents typically chose Justices who weren't raised in ideological petri dishes. When Gerald Ford nominated Stevens in 1975, he couldn't have known much more about his choice than Stevens' reputation for integrity, brilliance and impeccable manners. The genus was Republican, true, but the species was country club. And Ford had played enough golf to know that gentlemen don't ask other gentlemen about their politics.

    That's all finished, and Stevens helped finish it. Along with Earl Warren, William J. Brennan, Harry Blackmun and David Souter, Stevens is part of a small army of modern-era Justices who marched leftward after being elevated to the court by Republican patrons. If Presidents and political parties now put a premium on ideological purity, it's because they have seen what can happen when a Justice decides to migrate. The art of today's Supreme Court nominations comes down to finding candidates who can talk the talk of open-mindedness — then, once safely confirmed by the Senate, wage the court's ideological battles with tireless consistency.

    The surprising thing about Stevens, given his moderate beginnings and his undisputed charm, is how central he became to those ideological battles during the last decade of his long career. Only three Justices in history have served longer than Stevens, led by William O. Douglas, whom Stevens replaced. Taken together, Douglas and Stevens have filled their seat since before World War II. A strong writer who insisted on drafting his own opinions, Stevens wound up as the clarion of the court's left wing. No one in the high tribunal blew a louder bugle in warning against conservative trends, which he often denounced in stinging terms.

    Take this example: "Although we may never know with complete certainty the identity of the winner of this year's Presidential election, the identity of the loser is perfectly clear. It is the Nation's confidence in the judge as an impartial guardian of the rule of law." Thus Stevens excoriated the conservative majority that ruled in favor of George W. Bush against Vice President Al Gore in 2000. In this year's controversial campaign-finance case, Stevens accused the majority Justices of pursuing their own "agenda" at the expense of "the common sense of the American people."

    Some Democrats would like to see President Obama nominate a sharp-penned progressive to take over the Stevens soapbox. Nan Aron of the Alliance for Justice, for example, speaks of Stevens' "strong voice" and urges Obama to choose "a worthy successor." Without Stevens, there will be no one in the court's liberal wing to balance the rhetorical firepower of conservative Antonin Scalia, who will take over the role of senior associate Justice. Given the fever pitch of Washington politics in an election year, though, Obama might wish to avoid a polarizing confirmation battle. Instead, he'll seek a candidate with a soothing demeanor and a paper trail as bland as Milk of Magnesia. Tender on the outside, steely on the inside — a Democratic version of Chief Justice John Roberts.

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