One Man, Two Courts

Fordham Law School in The New York Times, April 10, 2010

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By LINDA GREENHOUSE
New Haven

THE more than 34 years that Justice John Paul Stevens has served on the Supreme Court represent not just a very long tenure, but a bridge between two eras of our domestic and judicial politics. Justice Stevens entered the court from one world, and he will emerge from it a few months from now into another.

Just how different those two worlds are was brought home to me a year ago when, for a law school symposium, I was researching Justice Stevens’s contribution to the court’s abortion jurisprudence. He was the first person named to the Supreme Court after the court declared in Roe v. Wade that women have a constitutional right to choose abortion. Nearly three years elapsed from the court’s decision in January 1973 to President Gerald R. Ford’s selection of John Paul Stevens, then a federal appeals court judge, to succeed Justice William O. Douglas in December 1975.

I obtained the transcript of his Senate confirmation hearing to see what kinds of questions the senators asked the nominee about abortion. He had no record on the issue, and no one knew what he thought about it. To my surprise, I found no questions at all, and I read the transcript through a second time just to be sure. The Democratic-controlled Senate approved Justice Stevens by a vote of 98-0 three weeks after his nomination, and after five minutes of debate.

Six years later, when President Ronald Reagan nominated Sandra Day O’Connor, everything had changed. The 1980 Republican platform for the first time had called for the nomination of judges who opposed abortion. Sandra Day O’Connor, then a state court judge in Arizona, was vetted on the issue by White House aides and questioned closely by Republican senators, who doubted the anti-abortion credentials that the administration had vouched for.

And so it has been ever since, although the dialogue has come to be conducted in the coded language of “stare decisis” (adherence to precedent) and the right to privacy. My mistake in being surprised at the Stevens transcript was to suppose that an individual’s position on abortion became definitional immediately after Roe. In fact, a Gallup Poll the summer before the court announced its decision found more Republicans than Democrats — and a majority of both — in support of leaving the abortion decision up to a woman and her doctor. It took much of the rest of the decade for the political parties to realign themselves over the issue.

At the time Justice Stevens joined the court, in fact, a more divisive issue in the country was the death penalty, which the Supreme Court had invalidated three years earlier. Six months after joining the court, Justice Stevens wrote a trio of opinions by which the court changed course and upheld a new generation of state death-penalty laws.

The new justice demonstrated a conservative bent on other issues as well. He opposed affirmative action in several high-profile cases, including the Bakke decision in 1978. In an early post-Roe set of decisions, he voted against requiring the government to pay for abortions for women who could not afford them. Little in his early performance suggested that he would come to play an important strategic role in preserving the right to abortion, let alone that he would retire three decades later as the leader of the court’s remaining liberals.

All of which raises the question of what happened. Justice Stevens provided a hint of an answer when he spoke in 2005 at a forum in his honor at Fordham University Law School. “Learning on the job is essential to the process of judging,” he said.

That modest sentence could be emblazoned on courthouse walls as the credo of the open-minded judge. John Paul Stevens never lost his willingness to test his instincts against his observations. It was just two years ago, in Baze v. Rees, that he renounced his support for the death penalty in an opinion grounded not in abstract principle but in years of sorrowful observation of how the death penalty was actually being administered under statutes and Supreme Court opinions that cut off avenues of appeal. The premise that the justices has assumed in 1976, that the death penalty could be rational and fair, had gone unfulfilled, he said, and it was now time to reconsider “the justification for the death penalty itself.”

In recent interviews discussing whether he might retire, Justice Stevens has proclaimed his love for the job, and that is no doubt true. Nonetheless, in the last several years, his dissenting opinions became more full-throated, in cases like District of Columbia v. Heller, the 2008 decision that upheld Second Amendment gun rights, and this year’s Citizens United v. Federal Election Commission, which overturned the court’s own recent campaign-finance precedents. The Supreme Court is more polarized now than it has been in years, and it is reasonable to suppose that he has been finding less to love.

I recall the scene at the court on Oct. 3, 2005, when Justice Stevens administered the oath of office to the new chief justice, John G. Roberts Jr., 35 years his junior. The two had first met 25 years earlier, when John Paul Stevens was a justice and John Roberts was a clerk.

The two robed figures presented a striking generational tableau, but I didn’t pause then to reflect that Justice Stevens represented an era that had already faded from collective memory, a time when a Supreme Court nominee didn’t have to check every box, a time when we could welcome a nominee who might be willing to learn something on the job.

Linda Greenhouse, a columnist for nytimes.com, is the former Supreme Court correspondent for The Times.