Justice Stevens: A legal force at 89

John Paul Stevens is seen after the Supreme Court Justices of the United States posed for their official "family" group photo and then allowed members of the media to take photos afterward on September 29, 2009, at the Supreme Court in Washington. UPI/Gary Fabiano/POOL
John Paul Stevens is seen after the Supreme Court Justices of the United States posed for their official "family" group photo and then allowed members of the media to take photos afterward on September 29, 2009, at the Supreme Court in Washington. UPI/Gary Fabiano/POOL | License Photo

WASHINGTON, Oct. 1 (UPI) -- Justice John Paul Stevens, at 89 still an intellectual force on the U.S. Supreme Court in the 21st century, is a true child of the previous one, the epoch Henry Luce called the "American Century."

Amid growing speculation that Stevens is about to step down -- the high court's new term begins Monday, and so far Stevens has hired on only one clerk, the limit for a retired justice -- there remains a great deal of charm in his remarkable life.


Born to a relatively privileged family in Chicago in 1920, his grandfather founded the Illinois Life Insurance Co. and built the Stevens Hotel, which eventually became the Hilton Hotel.

As boys, Stevens and his three older brothers posed for the bronze sculptures in the hotel's grand hall. A young Stevens met celebrities staying at the place, such as aviators Amelia Earhart and Charles Lindbergh. Lindbergh even gave the 7-year-old Stevens a dove, "Lindy."


Stevens not only met Babe Ruth at the hotel, he was at Wrigley Field for Game 3 of the World Series when the Babe "called his shot" -- after getting a merciless riding from the Cubs' bench, with the count at 2 and 2, Ruth pointed to center field and smacked a 440-foot home run into the center field bleachers.

Even for a Cubbie fan like Stevens, it had to be a major thrill.

Like many old men who are comfortable in their own skin, it's still possible to see the boy in Stevens behind his bow tie and glasses as he approaches his 90th year in his 34th year on the Supreme Court. His enduring zest for life is evident in the fact that he spends every spare second away from the high court playing tennis and golf in Florida near his condo.

There is at least one concession to his advancing age: He no longer flies his private plane from Washington to Florida.

Stevens' legal career has been impressive, even for a justice.

After graduating in 1941 from the University of Chicago Phi Beta Kappa, Stevens became a decorated Naval intelligence officer, serving in the Pacific theater, in World War II.


After the war, the brilliant Stevens graduated in 1947 from the Northwestern School of Law with the highest grade point average in the school's history.

He immediately went to work as a law clerk for U.S. Supreme Court Justice Wiley Blount Rutledge, one of the four members of the court's liberal "Axis" during President Franklin D. Roosevelt's administration.

Stevens founded his own law firm in Chicago in 1952, then was snatched from lucrative private practice by President Richard Nixon for the federal appeals court in Chicago in 1970.

When Justice William Douglas stepped down after nearly 37 years on the U.S. Supreme Court in 1975, President Gerald Ford used his only opportunity to pick a high court justice by naming Stevens.

Among the prominent opposition to the Stevens nomination -- he was confirmed 98-0 by the Senate -- were women's groups who thought some of his opinions on the appeals court diminished women's rights.

Though usually described during his 34 years on the Supreme Court as a liberal lion -- Stevens consistently votes with the three other members of the court's liberal bloc on a variety of cases -- he's hard to put in a box.

For example, in 1990's United States vs. Eichman, a 5-4 majority including conservative Justice Antonin Scalia voted to strike down the federal statute against flag burning as a violation of free speech.


Stevens the liberal wrote the dissent.

"The (court narrow majority's) opinion ends where proper analysis of the issue should begin," Stevens wrote in defense of the ban. Citing the majority opinion, he said, "Of course 'the government may not prohibit the expression of an idea simply because society finds the idea itself disagreeable.'

"None of us disagrees with that proposition," Stevens said. "But it is equally well settled that certain methods of expression may be prohibited if (a) the prohibition is supported by a legitimate societal interest that is unrelated to suppression of the ideas the speaker desires to express; (b) the prohibition does not entail any interference with the speaker's freedom to express those ideas by other means; and (c) the interest in allowing the speaker complete freedom of choice among alternative methods of expression is less important than the societal interest supporting the prohibition."

On other issues, such as the death penalty, Stevens' ideas seem to have migrated from right to left.

The Supreme Court struck down the death penalty, as it was being applied, in the 1972 term as violating the Eighth Amendment's ban on cruel and unusual punishments.

But in 1976, Stevens was one of three court members credited with writing the prevailing opinion in Gregg vs. Georgia restoring the death penalty as constitutional if fairly applied, saying, "The existence of capital punishment was accepted by the Framers of the Constitution, and for nearly two centuries this court has recognized that capital punishment for the crime of murder is not invalid per se."


By 2008, however, Stevens was writing that he supported the death penalty only because of the doctrine of "stare decisis" -- the issue was settled law.

In that year's Baze et al vs. Commissioner Rees et al, Stevens wrote a separate opinion agreeing with the judgment of the majority, which upheld Kentucky's death penalty, because it was settled law.

But he expressed serious concerns with one of the drugs used in lethal injections.

"Because it masks any outward sign of distress, pancuronium bromide creates a risk that the inmate will suffer excruciating pain before death occurs," Stevens wrote. "There is a general understanding among veterinarians that the risk of pain is sufficiently serious that the use of the drug should be proscribed when an animal's life is being terminated. As a result of this understanding among knowledgeable professionals, several states -- including Kentucky -- have enacted legislation prohibiting use of the drug in animal euthanasia. ... It is unseemly -- to say the least -- that Kentucky may well kill petitioners using a drug that it would not permit to be used on their pets.

Quoting Justice Byron White, who in 1972 helped strike down the death penalty temporarily, based "on (White's) extensive exposure to countless cases for which death is the authorized penalty," Stevens said, "I have relied on my own experience in reaching the conclusion that the imposition of the death penalty represents 'the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes. A penalty with such negligible returns to the state (is) patently excessive and cruel and unusual punishment violative of the Eighth Amendment.'"


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