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After Stevens: What Will The Supreme Court Be Like Without Its Liberal Leader?

Publication Date: 
March 22, 2010
The New Yorker
Jeffrey Toobin

Professor Jeffrey Fisher is quoted in this New Yorker profile of Associate Justice John Paul Stevens by Jeffrey Toobin:

Supreme Court Justices are remembered for their opinions, but they are revealed by their questions. For many years, Sandra Day O’Connor chose to open the questioning in most cases, and thus show the lawyers—and her colleagues—which way she, as the Court’s swing vote, was leaning. Today, Antonin Scalia often jumps in first, signalling the intentions of the Court’s ascendant conservative wing, and sometimes Chief Justice John G. Roberts, Jr., makes his views, which are usually aligned with Scalia’s, equally clear. New Justices tend to defer to their senior colleagues, but Sonia Sotomayor, in her first year on the Court, has displayed little reluctance to test lawyers on the facts and the procedural posture of their cases; these kinds of questions had generally been the province of Ruth Bader Ginsburg, who, at times, has not seemed entirely pleased by the newcomer’s vigor. Samuel A. Alito, Jr., often says little; Clarence Thomas never says anything. (Thomas has not asked a question at an oral argument since 2006.)

John Paul Stevens, who will celebrate his ninetieth birthday on April 20th, generally bides his time. Stevens is the Court’s senior Justice, in every respect. He is thirteen years older than his closest colleague in age (Ginsburg) and has served eleven years longer than the next most experienced (Scalia). Appointed by President Gerald R. Ford, in 1975, Stevens is the fourth-longest-serving Justice in the Court’s history; the record holder is the man Stevens replaced, William O. Douglas, who retired after thirty-six and a half years on the bench. Stevens is a generation or two removed from most of his colleagues; when Roberts served as a law clerk to William H. Rehnquist, Stevens had already been a Justice for five years. He was the last nominee before the Reagan years, when confirmations became contested territory in the culture wars (and he was also, not coincidentally, the last whose confirmation hearings were not broadcast live on television). In some respects, Stevens comes from another world; in a recent opinion, he noted that contemporary views on marijuana laws were “reminiscent of the opinion that supported the nationwide ban on alcohol consumption when I was a student.”


Stevens tends to weigh in at oral argument at around the halfway point, and he does something that none of his colleagues do: he asks permission. “May I ask you a question?” or “May I ask you this?” Frequent advocates find this tic amusing and endearing, a little like the bow ties that he always wears. “However Justice Stevens is going to come out on an issue, he is going to do it in a way that is very friendly and avuncular and good-natured,” Paul Clement, who was George W. Bush’s Solicitor General from 2005 to 2008, says. “He’ll say something like ‘This is probably obvious, but I have this one question. Could you help me with this one point?’ An experienced advocate knows that you have to be on your guard, because he’s probably found the one issue that puts your case on the line.” Jeffrey Fisher, who clerked for Stevens in the 1998-99 term and is now a professor at Stanford, says, “The reason he very rarely speaks first is that he really listens to his colleagues and tries to figure out what is on their minds and tries to figure out what the swing votes care about in the case.”