The Stevens Court

Article excerpt

Byline: Evan Thomas and Stuart Taylor Jr.

John Paul Stevens went from judicial conservative to liberal light, but the court he served for 35 years stayed mostly in the middle.

The 35-year career of justice John Paul Stevens, who announced last week that he was stepping down, perfectly spanned an era when the U.S. Supreme Court was, well, boring. In ways that were reassuring to some, disappointing to others, the Supreme Court has not pushed the country in one particular direction or another for the past three and a half decades. It is unlikely that President Obama's appointment to replace the nearly 90-year-old Stevens will make much of a difference. The Supreme Court has become a mirror, not a leader, in the nation's struggle to define and understand itself.

In 1901 Mr. Dooley, the fictional Irish bartender of satirist and newspaper columnist Finley Peter Dunne, memorably declared, "Th' supreme coort follows th'illiction returns." But for much of the rest of the 20th century, the high court did not follow the election returns. At first, it was a force of reaction. Franklin Roosevelt despaired about "the nine old men" who were striking down his New Deal legislation as an infringement on property rights, and threatened to "pack" the court with liberals by expanding it to up to 15 justices. He wisely backed down and, through death and retirement, eventually got the justices he wanted.

Yet Supreme Court justices sometimes surprise the presidents who appoint them. Two Eisenhower appointees, Chief Justice Earl Warren and William Brennan, turned out to be visionary liberals. The Warren court desegregated the schools, protected free speech, safeguarded the rights of the criminally accused, and generally got out ahead of the voting public in the 1950s and '60s. It moved so far that IMPEACH EARL WARREN bumper stickers became familiar in the more conservative parts of the country. It is fair to say that by giving real meaning to constitutional rights, the Warren court moved the country to the left.

As the conservative reaction to the liberal '60s set in, it was widely predicted that the Supreme Court would turn to the right. But a funny thing happened. The court became a force for relative moderation. From the Reagan through the George W. Bush eras, the nation as a whole moved at least slightly right of center, judging by polls and election results. But the Supreme Court stayed somewhat left of center--essentially continuing on the path set by the liberal establishment of the 1960s. The court slightly trimmed back but did not abolish a woman's right to an abortion. It rejected outright racial quotas but preserved affirmative action that, as a practical matter, permitted the use of racial preferences in hiring and school admissions. It gave the police a little more authority to search suspects but upheld the once controversial requirement that suspects be read their rights before being charged. It continued to outlaw school prayer. It protected women's rights in most cases and created constitutional protection for homosexuals. In each case, the court was at least arguably to the left of public opinion, though in accord with most mainstream newspaper editorialists and name-school legal scholars. …