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Justice Stevens' quiet strength can be persuasive

William J Brown in USA TodayLiberal build majorities on divided court

By Joan Biskupic

WASHINGTON- His unassuming manner and frequent lone dissents often relegate liberal Justice John Paul Stevens to the periphery of a U.S. Supreme Court that is led by conservatives.

But several recent rulings have shown how Stevens- at 84, the oldest justice- is a quiet force on the nine-member court. Stevens, the senior member among the court’s four more liberal justices. has managed to snare votes from the conservative justices who are at the court political center- Sandra Day O’Connor and Anthony Kennedy – to frustrate the agenda of Chief Justice William Rehnquist.

Last month, Stevens’ carefully crafted reasoning in a Tennessee case won O’Connor’s support and led to a 5-4 ruling in which the court said people with disabilities could sue states to gain access to courthouses. The decision broke the out usual pattern of protecting states from lawsuits and limiting the breadth of U.S. civil rights laws.

The vote lineup in Tennessee vs. Lane mirrored that from a Stevens- led decision in December, when the court upheld key provisions of a federal campaign-finance law that bans unlimited corporate and labor union contributions. In the 5-4 decision endorsing the McCain-Feingold law, Stevens shared authorship of the majority opinion with O’Connor.

Stevens, who is partial to silk bow ties, does not have the influential middle-ground stance of O’Connor. He does not have the unyielding ideology of Rehnquist (on the right) or the late Justice William Brennan (who was on the left). And although Stevens’ rhetoric can be as biting as that of conservative Justice Antonin Scalia, Stevens does not have Scalia’s dramatic flair.

But with this closely divided court, Stevens frequently has been able to form a majority by uniting the left and persuading O’Connor or Kennedy to be the fifth vote. For the past 10 years, since the retirement of Justice Harry Blackmun, Stevens has been the longest-serving member of the court’s liberal wing, which also includes David Souter, Ruth Bader Ginsburg and Stephen Breyer.

That seniority gives Stevens the power to decide who will write the court’s opinion when the left prevails. He often will relinquish the chance to write for the court- and will keep a fragile coalition together- by assigning the opinion to the justice who is the deciding fifth vote or who otherwise is crucial to forming a majority.

A leadership role

Last year, when Stevens was the most senior justice among the five who wanted to uphold affirmative action in college admissions, he assigned the opinion to O’Connor, the crucial vote. Three years earlier, when the same five justices- Stevens, O’Connor, Souter, Ginsburg, and Breyer- voted to strike down a Nebraska ban on an abortion procedure that critics call “partial birth,” Stevens and Breyer write the opinion. Breyer’s opinion was limited in scope, acknowledged the difficulty of the abortion issue and kept O’Connor’s vote.

“People don’t naturally think of him as a leader,” says Washington lawyer Beth Brinkmann, who was law clerk to Blackmun, “because he is know for his lone dissents. But the rulings, particularly in Lane and McCain-Feingold, show him in his leadership role.”

When the liberal lose- which remains a regular occurrence on the Rehnquist court- Stevens usually is the most blistering voice from the left. That was evident in the Bush vs. Gore ruling in 2000, in which the court stopped the recounting of presidential ballots in Florida and effectively awarded the White House to Republican George W. Bush. Stevens said then that “the nation’s confidence in the judge as an impartial guardian of the rule of law” was shaken.

In general, a “conservative” judge tends to narrowly interpret the rights of the Constitution and federal law, and believes that society’s problems should be addressed by elected lawmakers rather than by appointed judges. “Liberal” jurists typically are more inclined to find the meaning of the Constitution not only in its text but also in contemporary life. They usually believe that judges can help solve society’s problems.

In the few polls that have asked people to identify Supreme Court justices, Stevens- who has more tenure on the court than any other justice except Rehnquist- ranks among the least recognizable. A native of Chicago’s South Side and a graduate of Northwestern University’s law school, Stevens was nominated by President Ford and joined the court in 1975.

“He is impossible to pigeonhole,” says Santa Clara University law professor Kenneth Manaster, who Illinois judges accused of taking a bribe.

“He speaks his mind and has a lack of pretense.”

Stevens’ work on that Illinois panel raised his national profile. President Nixon appointed him in 1970 to the U.S. Court of Appeals for the 7th Circuit. Five years later, Ford tapped Stevens to replace Justice William O.Douglas.

Stevens has said the Illinois scandal, which began with allegations by a local gadfly about possible judicial wrongdoing, affected the way he approaches his work at the high court. Compared with his peers, Stevens is more tolerant of gadflies who constantly file cases, and he is the only justice who declines to use a pool of law clerks for guidance on which appeals from lower courts should be heard.

“I think the less judicial work that is delegated, the better for the court and the country, Stevens said in an interview in 2001 with USA TODAY. He declined to be interviewed for this story.

Winning over colleagues

The once-private paper of former justices, including those of Blackmun that were revealed this year, offer many examples of Stevens encouraging the court’s liberals to negotiate for O’Connor’s or Kennedy’s vote in close cases.

In 1990, when O’Connor was slowly changing her position toward favoring abortion rights, Stevens helped to keep her vote in a case that tested a Minnesota law that required girls under age 18 to notify both parents before having an abortion. By the 5-4 vote, the court said the two-parent notification law was unconstitutional.

Stevens, who appears to be in good shape and have given no indication of any retirement plans, consistently has dissented from the Rehnquist majority’s effort to limit the reach of U.S civil rights laws. And unlike most of the other justices, Stevens often reads sharply worded statements from the bench.

Last month, when he wrote the majority opinion in the Tennessee disability case, Stevens took a cautious approach to get O’Connor’s support. In cases that test the federal government’s authority to impose mandates on unwilling states, O’Connor typically sides with conservatives Rehnquist, Scalia, Kennedy and Clarence Thomas in backing states’ rights.

But in the Tennessee case, Stevens apparently won O’Connor’s vote by limiting the scope of his opinion. Stevens’ opinion focused on the need to provide the disables with access to courts and the justice system, but it did not endorse the idea that people with disabilities should be able to sue to gain access to other state services.

“We often think of a leader in the style of a dealmaker.” says Harvard University law professor David Barron, a former clerk to Stevens. “He’s remaking that role in his own image: modest, persuasive, persistent.”