April 19, 2006
Wednesday

WASHINGTON - As Justice John Paul Stevens turns 86 Thursday, he is the latest jurist-to-watch in what has become, during President Bush's second term, a vulturine pastime for ideological activists: predicting the next vacancy on the Supreme Court.

Think the battle for control of the nation's highest court ended with the recent confirmations of Chief Justice John Roberts and Justice Samuel Alito? Think again.

Those confirmations likely helped conservatives solidify their representation. But it is the next vacancy that gives them the opportunity to finally take a 5-4 majority on the court and put landmark abortion rights case Roe v Wade, as well as other rulings on religion, sexuality and free speech, in play. That opportunity hinges on the next vacancy coming from within a group of five justices who range from socially liberal to moderately conservative, before Bush leaves office in 2008 and while Republicans are in control of the Senate.

Stevens, a Republican who votes with the liberal bloc of the court and who declined an interview for this story, has announced no plans for retirement. In the mid-1970s he had heart bypass surgery and a polyp removed from his colon, and in the early 1990s he was treated for prostate cancer. But these days, acquaintances say the Shakespeare buff who has piloted his own planes and plays tennis is healthy, even spry. They say he dabbled with the idea of retirement years ago and instead compromised - with a condo in Florida where he can read briefs and spend time with his wife, who has had health problems, when he is not needed in court.

Nevertheless, because of his status as one of those five liberal-to-moderate justices (the others are Ruth Bader Ginsburg, Stephen Breyer, David Souter and Anthony Kennedy), and because of his seniority (he is the oldest on the high court now, the third-eldest justice in history and one of the longest-serving) Stevens is being watched by conservatives ready to see him move on and by liberals anxious for him to stay put.

Pundit Ann Coulter complained to a college audience earlier this year in widely reported remarks that the courtly, bow-tied Midwesterner was a roadblock to the anti-abortion movement's takeover of the courts. She joked darkly, "We need somebody to put rat poisoning in Justice Stevens' creme brulee."

"I am prayerful that he will not retire," said Ralph Neas, president of liberal advocacy group People for the American Way, which fought the nominations of Roberts and Alito.

"More than 100 precedents could be overturned, affecting privacy, equal opportunity, religious liberty, environmental safeguards, checks and balances regarding presidential powers. It probably would firmly ensconce the right wing in control of the court for perhaps for 25 or 30 years."

Manuel Miranda, founder of the Third Branch Conference, which campaigns for conservative judicial nominees, said he greatly admires Stevens as a legal mind. "But as a conservative activist or strategist, I think, 'This is what we're fighting for, we're fighting to shift the country to a more conservative alignment.' "

Of Stevens' eventual retirement, Miranda said, "The sooner, the better.

"He's not a person who's out to rewrite the Constitution or write it in his image," Miranda said. "I just think he's of a different generation. Everybody responds to the conditions and circumstances of their times. It isn't that he has shifted to the left. It's that he is anchored in a classical liberalism that movement conservatives no longer espouse."

Stevens, born in 1920 to a wealthy Chicago family, is a graduate of the University of Chicago and Northwestern University Law School, who earned a Bronze Star as a Navy code-breaker in World War II. Divorced and remarried long ago, he is the father of four - three daughters and a deceased son.

Stevens clerked for Supreme Court Justice Wiley Rutledge and worked in private practice before being made a federal appeals judge by President Richard Nixon. President Gerald Ford named him to the Supreme Court in 1975 as a consensus candidate.

As it turned out, Democrats often have found more than Republicans to like about Stevens' positions.

He wrote a sharp dissent to Bush v. Gore, the high court ruling that stopped a Florida court-approved ballot recount and expedited President Bush's win in the contested 2000 election: "Although we may never know with complete certainty the identity of the winner of this year's Presidential election, the identity of the loser is perfectly clear. It is the Nation's confidence in the judge as an impartial guardian of the rule of law."

He penned the 6-3 majority opinion in Rasul v. Bush, the 2004 case that went against the Bush administration and decided foreign nationals being held at Guantanamo in the so-called war on terror have a right to contest their status in federal court.

Stevens also wrote Kelo v. New London, an unpopular 5-4 decision last year that said local governments can force the sale of private property in the interests of economic development. Perhaps anticipating a backlash, he emphasized lawmakers had the power to minimize the impact of the ruling by enacting new limits on eminent domain laws.

Not all of Stevens' rulings would be described as liberal. When a 5-4 majority of the court found in the 1989 case of Texas v. Johnson that burning the American flag was protected as a matter of free speech, Stevens dissented, writing that "sanctioning the public desecration of the flag will tarnish its value."

But he has supported abortion rights and gay couples' rights to privacy in the bedroom, become more sympathetic to affirmative action laws over the years, and sided with justices limiting religion in public schools.

Stevens has supported the death penalty in general, but sided with the court in blocking executions of minors and the mentally retarded, and he has become increasingly critical of its application on adults.

"I think he has changed jurisprudentially, but I think that's partly a function of him trying to balance out the right on the court," said Joseph T. Thai, an associate professor at the University of Oklahoma College of Law, who was a clerk for Stevens in 2000-01. "He's acting as a counterweight. I think he always believes it's important to get all sides of an issue out."

At a Fordham University gathering last year, Thai recalled how a group of Stevens' former clerks presented him with a letter from President Ford to the law school dean celebrating Stevens' 30 years on the Supreme Court. In the letter, Ford said he would be satisfied if his presidency were judged solely by his choice of Stevens for the court, and added, "I wish him long life, good health and many more years on the bench."

"You could tell he was visibly moved by the letter," Thai said. "He has gotten a lot of flak from the right for changing, for being a liberal activist. It's touching for him to have the guy who appointed him to the court saying, 'No, I know who you are, you're still the same person I appointed and I did not make a mistake.'"

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