Stevens carved liberal legacy on high court

By Calvin Woodward
and Mark Sherman
Associated Press Writers

WASHINGTON (AP) — The preservation of abortion rights, protection of consumer rights and limits on the death penalty are due in no small measure to John Paul Stevens’ actions on the Supreme Court.
He’d tell lawyers gently, “Let me ask a stupid question,” then subject them to an intellectual grilling en route to decisions touching many aspects of American life.
The justice prodded the government to take global warming more seriously, and he stood for campaign-finance controls in an imperfect world in which he acknowledged, “Money, like water, will always find an outlet.”
Stevens said last Friday he’s retiring in the summer. That sets up a struggle over his replacement that is likely to be far more contentious than the process 35 years ago that placed him on the high court.
The man who became the court’s leading liberal was nominated by a Republican president, Gerald Ford, and confirmed 98-0 by the Senate, a consensus almost unimaginable in this partisan, ideologically driven era.
Stevens’ influence waned and waxed over the decades, reaching its height after other liberals retired in the early 1990s.
For a dozen years after, the justice in the bow tie proved adept at drawing votes from Republican appointees Sandra Day O’Connor and Anthony Kennedy to frustrate Chief Justice William Rehnquist’s conservative agenda of promoting states’ rights and the death penalty.
He’s had considerably less success swaying the balance under Chief Justice John Roberts, and with the more conservative Justice Samuel Alito in O’Connor’s seat.
Even so, Stevens notably influenced a 2008 decision allowing terrorism suspects, held without charge for years at the military-run prison at Guantanamo Bay, Cuba, to plead for their freedom in U.S. federal courts.
Stevens had a reputation as a bright and independent federal appeals court judge when Ford nominated him to the Supreme Court.
Early on, he proved idiosyncratic, appearing not to care if other justices went a different way.
Stevens was “the most independently minded and intellectually creative member of the high court, a man of great integrity,” said James Simon, former dean of the New York Law School.
“The benefit is that he always offered a fresh perspective. But a downside, perhaps, is that he didn’t have much of a following.”
You could sometimes tell when Stevens was headed toward a maverick opinion. He would preface it with: “As I understand this case.”
Stevens’ power grew in the late 1980s and 1990s after moderate conservatives O’Connor and Kennedy joined the court.
He found them open to his views on issues such as abortion rights, bringing them aboard by crafting narrow rulings or by using his status as the senior liberal to assign certain opinions to them.
In a major abortion case in 2000, he cobbled together a five-vote majority that upheld Roe v. Wade, the landmark abortion-rights law, and struck down Nebraska’s ban on the procedure that critics call partial-birth abortion.
Rather than write the opinion himself, Stevens assigned it to Justice Stephen G. Breyer, then wrote a concurring opinion asserting that abortion opponents were spreading misleading rhetoric.
“The rhetoric is almost, but not quite, loud enough to obscure the quiet fact that during the past 27 years, the central holding of Roe v. Wade has been endorsed by all but four of the 17 Justices who have addressed the issue,” Stevens added. Yet in 2007, Roberts and Alito helped form a majority to uphold a federal ban on the same abortion procedure.
Stevens sometimes brought a touch of whimsy to his “quiet facts.”
Dissenting from a 1976 decision that said disability benefit plans excluding preg-nancy benefits are not sexually biased, Stevens said, “By definition such a rule discriminates on account of sex for it is the capacity to become pregnant which primarily differentiates the female from the male.”
When the court ruled two years later that the Federal Communications Commission could ban the broadcast of “indecent” words even if they are not legally obscene, Stevens wrote that “when the commission finds that a pig has entered the parlor, the exercise of its regulatory power does not depend on proof the pig is obscene.”
An antitrust expert who practiced and taught that area of the law before becoming a judge, Stevens wrote some of the court’s most important antitrust rulings.
One such decision ended the National Collegiate Athletic Association’s control over the televising of college football games.
In recent years, Stevens influenced decisions outlawing the death penalty for the mentally retarded and for juvenile killers and led a majority in giving hundreds of foreign-born terrorism suspects held at Guantanamo Bay the right to challenge their detention in U.S. courts.
And last term, he wrote two opinions rejecting a ban on consumer lawsuits against certain businesses, one involving a drug manufacturer and the other the tobacco industry.
Stevens wrote a joint opinion with O’Connor in 2003 that upheld, 5-4, the McCain-Feingold campaign-finance law barring unlimited corporate donations.
President Barack Obama might have had this ruling, among others, in mind last Friday when he said he wanted another justice “who, like Justice Stevens, knows that in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens.”
But the shifting court sapped Stevens’ clout, frustrating liberals on school integration, pay discrimination, defendants’ rights and more.
Four years after the McCain-Feingold ruling, the court backtracked by allowing corporate- and union-financed issue ads to be shown close to elections.
And this year, the court ruled corporations, unions and groups of individuals can spend unlimited sums supporting or opposing candidates, as long as they do it independently of political campaigns.