Inside Justice Stevens's Retirement Dilemma

Most Supreme Court justices like to be regarded as boldly decisive. Former justice Sandra Day O'Connor had a cushion in her chambers bearing the embroidered motto MAYBE IN ERROR, BUT NEVER IN DOUBT. A few are well-known agonizers. Justice Anthony Kennedy is famous for changing his vote at the last minute in some big cases (including, reportedly, Bush v. Gore) and once excused himself from an interview so he could go "brood." But Justice John Paul Stevens has never come across as a brooder. He's too sensible for that. Which makes this past month of high-profile interviews—in which the justice has told three different reporters that he's still making up his mind about whether he's retiring this year—so out of character for the low-key Chicagoan.

None of this public vacillating can be good news for the White House. The longer Stevens ponders his departure, the more time opponents of his yet-to-be-named successor have to gear up. Already there is a concerted campaign against federal-appeals-court judge Diane Wood (a short-lister for David Souter's seat last year) and strong right-wing pushback against Solicitor General Elena Kagan, widely rumored to be the frontrunner for a Stevens seat. Without a nominee to defend, the White House is left shadowboxing vague accusations about nameless judicial activists threatening to overrun the high court. Last week's threats of GOP filibusters, and warnings from Sen. Arlen Specter that an election year is not the time to quit, show how high the stakes really are.

So what's behind Stevens's unlikely turn as Hamlet this spring? Stevens cracked Japanese code for the military during World War II, and yet he has always made a point of speaking with perfect clarity. He will be 90 this month, and has been on the bench almost 35 years. Not far from breaking Supreme Court records for age and years served, he made it clear last fall when he hired only one law clerk for next year that he was considering leaving. But for a justice who eschews both theatricality and whispering to the press, this year of living undecidedly comes as a surprise. "The tradition is of a no-leaks bolt from the blue," says historian David Garrow. "Letting the White House know super-quietly in advance is fine, but I think it badly contributes to an unnecessary and undesirable politicizing of the court to have a public 'debate' about whether Stevens should go ahead and retire or not." Perhaps all these hand-wringing interviews reveal Stevens engaged in some uncharacteristic thinking out loud about the recent changes at the court. And what looks to be public agonizing over his retirement is in fact agony over the direction of the court itself.

In an interview he gave to The New Yorker's Jeffrey Toobin in March, Stevens painted himself as a moderate on a court where "things have changed." He's saddened by what he sees as an irreparable split on the Roberts Court. It's not just that five conservatives on the court are willing to overturn precedent and strike down federal laws, but Stevens also laments their willingness to do so in ways that are bolder and broader than the law demands.

Like O'Connor—who has seen her own jurisprudence hollowed out in the years since her retirement—Stevens is loath to openly criticize the court. And so, like O'Connor, he is trapped by his high regard for the institution itself, forced to worry silently (and perhaps more openly in his dissents) about what happens to the reputation of the court when a handful of justices dismantle decades' worth of jurisprudence.

This spring, as court watchers have struggled to explain how it is that a Stevens-shaped hole on the high court is more than the sum of the man himself, Stevens seems to be mulling over these same things: his absence as the most senior member of the court's liberal wing means that the traditional authority to assign majority opinions or dissents is passed down to Justice Anthony Kennedy. These same rules of seniority dictate that once Stevens departs, the first liberal to speak at case conferences may be Ruth Bader Ginsburg, who would speak fifth. Stevens has deftly used these bureaucratic powers, as well as his own personal gifts of persuasion and moderation, to leverage the court's liberal wing into some significant victories over the years. He has become irreplaceable in ways even a strong liberal successor may not be able to replicate. The ability to muster five votes has made Stevens a force of nature. For all the talk of wanting a "liberal Scalia" on the high court, Stevens must know better than anyone that liberals might be better served by seating a John Paul Stevens.