Justice Stevens is key to high court's future

Tom Curry National affairs writer • Profile • E-mail

WASHINGTON - The Roe v. Wade abortion decision was the topic of 35 separate questions posed by senators to chief justice nominee John Roberts at his Judiciary Committee confirmation hearing last week.

If you’re worried about whether the Supreme Court, with two new members soon joining it, will overturn Roe — or if you’re hoping the court will overturn Roe — here’s a name and number to keep in mind: John Paul Stevens, 85.

Even if President Bush’s two nominees to the high court — to replace Chief Justice William Rehnquist and Associate Justice Sandra Day O’Connor — were to vote to strike down Roe v. Wade, that would still leave a 5 to 4 majority to sustain Roe.

Barring a totally unexpected change of heart by any of the pro-Roe justices (Stevens, Anthony Kennedy, David Souter, Ruth Bader Ginsburg and Stephen Breyer), it would take Stevens’s departure from the court to open the way to toppling Roe.

Perhaps this battle is more symbolic than real. Georgetown University law professor Nina Pillard said Monday, "Nobody — including a Roberts court — is about to overrule Roe v. Wade."

But even the whiff of a possibility that Roe might be struck down has abortion rights activists rushing to their battle stations. And that is one reason why Stevens is so crucial.

The justice also plays a leading role in death penalty cases before the court. In 2002, he wrote the court's opinion in Atkins v. Virginia, in which the court ruled that the execution of a convicted murderer with an IQ score of 59 was unconstitutional. The mean score on the IQ test is 100.

Persuasion to retire
The chief justice has some tasks spelled out by statute, others by custom and tradition. The one task that wasn’t discussed during last week’s Roberts hearings was the role that chief justices have from time to time played in nudging an ailing justice into retirement.

Who will be the next justice? Profiles: The Judiciary Committee Complete coverage: The Alito hearing

At age 85, Stevens appears to be spry. During the court’s oral arguments last spring, his questions were, as usual, pertinent and posed with unfailing politeness.

Article Three of the Constitution says that judges and justices "shall hold their offices during good behavior," which has come to mean life tenure. There is no fixed age under federal law at which a justice must retire.

But old age and disability have been constant problems for the Supreme Court throughout its history, and they are likely to catch up sooner rather than later with Stevens, as well as with the other justices. The next oldest is Ruth Bader Ginsburg, at age 72.

That’s why the required reading list for Roberts, if the Senate votes to confirm him to be chief justice, should include a book called "Leaving the Bench" by David Atkinson, a political science and law professor at the University of Missouri in Kansas City.

Disability on the high court
Atkinson’s book is morbid but fascinating reading. He explains how each of the 108 justices up to 1999 came to retire or die while serving on the court. In several cases, a justice stayed on the court long after his mental or physical disability made it impossible for him to do his share of the court’s work.

And it has often been the chief justice who has taken on the delicate job of persuading the justice to step down.

In 1925, Chief Justice William Howard Taft gently pushed Justice Joseph McKenna off the bench. At age 81, McKenna had lost his mental acuity. The other eight justices agreed that, due to McKenna’s disability, no case would be decided because of his vote.

“Taft’s encouragement of McKenna’s resignation illustrates how effective procedural pressure exerted by a chief justice can be,” Atkinson says in his book. “With the concurrence of his colleagues, Taft was able to steer important opinions away from McKenna until he was able to persuade him to leave.”

In 1930, Chief Justice Charles Evan Hughes, speaking on behalf of his colleagues, visited 90-year old Justice Oliver Wendell Holmes to suggest that he retire. Hughes had checked first with Holmes’s closest friend on the court, Justice Louis Brandeis. Holmes immediately retired.

But it doesn’t always go so gracefully.

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