Sunday, April 08, 2007

Senior Justice Has A Leading Role At Pivotal Juncture

Stevens leads liberal bloc that faces re-energized consevatives. He has prevailed in recent rulings, working closely with swing vote Kennedy.

By Joan Biskupic

The opinions of Justice John Paul Stevens in this week's disputes over global warming and Guantanamo Bay prisoners reveal his increasing leadership on the Supreme Court and illustrate how his role has evolved in 31 years on the bench.

During his first two decades on the court, Stevens was known for his quirky independence. This made him unpredictable and unattached to any ideological camp. Today, he is squarely at the helm of the liberal bloc that faces a newly energized conservative coalition. Stevens, who will turn 87 on April 20, recently became the 10th-longest-serving justice in history.

"There's no question that on the post-O'Connor court, Stevens has come to play a leading role," says human rights lawyer Deborah Pearlstein, referring to the 2006 retirement of the influential Justice Sandra Day O'Connor.

The nation's highest court is at a pivotal juncture. It is the first full term with President Bush's appointees, Chief Justice John Roberts and Justice Samuel Alito, who succeeded O'Connor.

Alito has a more conservative record than O'Connor, and Roberts presents a more persuasive force than his predecessor, Chief Justice William Rehnquist. The assumption that they will be able to move the court to the right has been reinforced by comments during oral arguments in this term's most closely watched cases, including on abortion and school integration.

Yet, as this week's action shows, senior liberal Stevens continues to play a distinct role and is working closely with Justice Anthony Kennedy, the moderate conservative who is the swing vote on the nine-member bench:

•In a 5-4 ruling, Stevens wrote that the Environmental Protection Agency has the authority to regulate carbon dioxide and other greenhouse gases from cars and trucks. He said that if the EPA declines to regulate emissions, it must have scientific grounds.

Dissenting, Roberts said Stevens' view "ignores the complexities of global warming." Roberts derided the claim brought by Massachusetts and 11 other states against the EPA as part of "a lawyer's game."

•In a pair of appeals from Guantanamo Bay prisoners Monday, Stevens joined with Kennedy to explain why the justices were — for now — rejecting petitions from the detainees who have been at the U.S.-run naval base for more than five years.

Stevens and Kennedy warned that they would be watching to see if the Pentagon "unreasonably" delays hearings for the prisoners, most of whom have not been charged with any crime. At the close of their opinion they cited their views from 2004 that foreign prisoners at the U.S.-run base in Cuba have certain rights.

•Stevens, the last of the World War II veterans to sit on the court, crafted last June's decision striking down President Bush's first plan for a military commission system. That victory was made possible with a vote cast by Kennedy.

Stevens has been able to pull out narrow victories such as that ruling, Hamdan v. Rumsfeld, which led Congress to write a new military-tribunal law, and Monday's decision rejecting Bush arguments against regulating the emissions that cause global warming. Yet, the newly reconstituted Roberts Court is still young, and most of the cases from the 2006-07 term have yet to be decided.

When Republican President Ford appointed Stevens, the Chicago jurist was billed as a conservative. But his early years on the court defied ideological labels. Invariably, when a court ruling was 8-1, he was the lone dissenter, voicing often idiosyncratic reasoning.

Stevens' current role on the liberal wing stems largely from how much the court has shifted from an era marked by the liberalism of William Brennan, who retired in 1990; Thurgood Marshall, who retired in 1991; and Harry Blackmun, who stepped down in 1994.

"The composition of the court and nature of the issues has changed," says Emory University law professor Robert Schapiro, who was a law clerk to Stevens in 1991-92. "I think his substantive positions have stayed largely the same."

The most liberal justices today (including Ruth Bader Ginsburg and Stephen Breyer, Clinton appointees; and David Souter, appointee of the first President Bush) have more moderate approaches. That suits Stevens' own tendencies.

Stevens was awarded the Bronze Star for his service as a naval officer on a code-breaking team. After graduating from Northwestern law school, he clerked for Justice Wiley Rutledge, who, like Stevens today, was skeptical of assertions of executive power, even in wartime.

Because Stevens is the most senior among the liberal justices, he has the power to make assignments when the left prevails. He often will relinquish his chance to write the majority opinion and assign the opinion to the crucial vote — these days, Kennedy.

Even when he writes, Stevens seems to be mindful of Kennedy. In the EPA case, Stevens referred to a prior Kennedy opinion for support.

Pearlstein, a former law clerk of Stevens, speculated that Stevens did not vote to take the Guantanamo petitions because he wanted the new military tribunal system, which involves a limited right of appeal, to run its course.

"He's a judge's judge who takes seriously what the lower courts have to say," said Pearlstein, who until recently was with Human Rights First and is now a research scholar at Princeton University's Woodrow Wilson School of Public and International Affairs.

"He may be more occupied these days with managing the strategic center," she said. "But I find it hard to believe that he isn't still exercising his independent — however historically idiosyncratic — judgment."

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