The quiet ascent of Justice Stevens

If there is one word that best sums up Supreme Court Justice John Paul Stevens's approach to constitutional law, it is patience.

And this year more than any other Justice Stevens has demonstrated that patience has its rewards.

A longtime judicial maverick known for his liberal outlook and a fondness for silk bow ties, Justice Stevens has quietly emerged as a behind-the-scenes force on a largely conservative high court.

He has done it in part by taking a long view of his role at the court, sticking to his convictions, and waiting - often for decades - until a majority of the court recognizes what he sees as the wisdom of his position.

For example, in the decision extending federal court jurisdiction to detainees at Guantánamo Bay, Justice Stevens firmly established as law a legal argument he first encountered in 1948 as a Supreme Court law clerk. His boss, Justice Wiley Rutledge, embraced the argument in a dissent.

But last week - 56 years later - the same legal principles expressed in that Rutledge dissent became the clear law of the land in a landmark decision Stevens penned.

His hand is also apparent in last term's landmark gay rights decision. Some of the same language used by Justice Anthony Kennedy in his majority opinion in Lawrence v. Texas stems from a 1976 decision written by a little-known Chicago-based appeals court judge. His name: John Paul Stevens.

The Stevens-Kennedy collaboration was no accident. Stevens used his power as the court's senior liberal justice to assign the gay rights opinion to Kennedy, opening the way for a blockbuster ruling reflecting a constitutional conclusion Stevens had reached 27 years earlier.

"I think it is the hidden story of the last several years," says David Barron, a former Stevens law clerk who now teaches at Harvard Law School. "In many ways it is becoming the Stevens Court."

As the second most senior justice after Chief Justice William Rehnquist, Stevens' influence comes more by default than design. But the Chicago native appears to have made the most of his opportunities, voting with the majority in the recently concluded 2003-2004 term in seven of the term's top ten cases.

In addition to authoring the Guantánamo Bay decision, he wrote the opinion dismissing the Pledge of Allegiance lawsuit of California atheist Michael Newdow, and teamed up with Justice Sandra Day O'Connor to pen the decision upholding key provisions of the McCain-Feingold campaign finance law.

Stevens' influence was also on display in majority opinions that turned back efforts by the court's conservative wing in the areas of states' rights, police interrogation tactics, and government funding of religion.

"Justice Stevens emerged as a unifying and leading force on the court in part because in an array of important cases the conservative majority did not hold and that left him in control," says Thomas Goldstein, a Supreme Court advocate and analyst in Washington, D.C.

The conservatives weren't completely thwarted, largely prevailing in two of the terrorism cases and issuing a string of opinions favoring law enforcement. But the big wins of the term belong to liberals and moderates, suggesting a Stevens role behind the scenes.

Under court tradition, shortly after oral argument in each case the justices vote on how the case should be resolved. If Chief Justice Rehnquist is in the majority, he decides who will write the opinion. If not, the assignment is made by the most senior justice in the majority. Frequently that is Justice Stevens.

Page: 1 | 2