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Justice Stevens and the Liberal Court
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by Jeffrey Rosen
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The last Supreme Court term, which ended in June, featured more ideologically polarized 5-4 decisions than at any time in the Court's history. The new term, which begins on October 1, may not produce quite as many sparks: the cases the Court has agreed to hear are less controversial than the array of issues involving abortion, race, religion, and campaign finance that divided the justices last term. Nevertheless, the Court has already accepted a series of important cases involving judicial elections, drugs and crime, and the rights of detainees at Guantanamo Bay. And it may well agree to decide the constitutionality of Washington, D.C.'s ban on handgun possession in what could be the most important gun control case in decades.

Predicting how the Court will decide these cases is always a hazardous business. But I'm especially interested in the perspective of the Court's senior Associate Justice, John Paul Stevens, whom I recently had an opportunity to interview for the NEW YORK TIMES MAGAZINE. (Here is a link to the full article.) At 87 years old, Stevens has served on the Court for 32 years, and in four years will surpass the all-time longevity record set by his predecessor, William O. Douglas. Because of his seniority, Stevens has the important power to decide who will write the majority opinion for the Court when Chief Justice John Roberts is in dissent, and to decide who will write the principal dissent when the chief justice is in the majority. Stevens is exercising this power masterfully, courting the current swing justice Anthony Kennedy, to maximize his chances of voting with the more liberal justices rather than swinging to the right.

But how will Stevens vote in the most closely watched cases that the Court has already accepted for review? Several of them involve subjects about which he has expressed strong opinions in the past. In Lopez Torres v. New York State Board of Elections, a case to be argued during the first week in October, for example, the Court will decide whether New York's method of electing state trial judges violates the First Amendment. Stevens seems likely to say yes, since he has been a longtime opponent of judicial elections. "The electoral process can have an unfortunate impact on the neutrality and impartiality of a judge trying to follow the law as he sees it," he declared in a 1994 speech on judicial elections in Palm Beach. "For that reason, I've always felt that the election of a judge is not the best way to select our judges."

The Court will also hear U.S. v. Kimbrough, a case that highlights the fact that crack cocaine offenses are punished 100 times more severely than those involving powder cocaine. The case involves a Gulf War veteran who was charged with possession of 56 grams of crack cocaine and 92 grams of cocaine powder; the judge, noting that the federal sentencing law called for a sentence of 19 to 22 years, called the sentence "ridiculous" and instead imposed 15 years. The question in the case is whether judges can impose a sentence below the federal range because they disagree with a sentencing policy that Congress adopted in 1986 and has refused to change, despite strenuous criticism by judges and the federal sentencing commission. Although the Court has split along unexpected ideological lines in cases involving federal sentencing, Stevens's views seem relatively clear. In a 1994 case, Stevens was the only dissenter from a case in which he objected strongly to the fact that "the brunt of the elevated federal penalties" falls disproportionately on blacks, who use crack cocaine more frequently than powder cocaine.

Justice John Paul Stevens
Justice John Paul Stevens
Photo Credit: The Collection of the Supreme Court of the United States
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