Stevens, Souter: Supremely Vexing to GOP

The leading voice of the U.S. Supreme Court’s “liberal” bloc today is a Republican lawyer from Chicago whose family once owned the largest and grandest hotel along Michigan Avenue.

His close ally is a former GOP state attorney general from New Hampshire who traces his family roots in the Republican Party back to the beginning. His great-great grandfather cast an early and crucial vote at the Republican convention of 1860 for the eventual nominee, Abraham Lincoln of Illinois.

Justices John Paul Stevens, 81, and David H. Souter, 61, represent a phenomenon that has received much attention of late in the Senate.

They see themselves as moderates who want the court to steer a centrist course and to stand by its precedents. They clash repeatedly with their more conservative colleagues, who want to push the law to the right.

Stevens and Souter are, in short, the Jeffords Republicans of the Supreme Court.

The divide among the court’s Republican appointees--from Stevens and Souter on the left to Justices Antonin Scalia and Clarence Thomas on the right--highlights the ideological shift in the GOP. It also hints at the future direction of the court if President Bush gets an opportunity to replace one or more justices.

Stevens and Souter reflect the Republican Party of an earlier time. They came of age when the GOP’s strength was in the North, not the South.

Among its bedrock beliefs, the “Party of Lincoln” supported federal enforcement of civil rights, stood for individual liberty and personal privacy over heavy-handed government and saw virtue in the separation of church and state.

As the party of Theodore Roosevelt, the Republicans also championed conservation of the natural environment.

Scalia, 65, and Thomas, 52, are heroes to a new generation of cultural conservatives. They have fiercely opposed the right to abortion and the ban on school prayer. They are skeptical of federal environmental protection laws and have voted repeatedly in favor of states’ rights over civil rights.

When asked last year about his model for a new Supreme Court justice, then-candidate George W. Bush pointed to Scalia and Thomas. Asked about Souter, Bush declined to comment on his father’s first appointee to the high court.

Conservative activists in Washington are not as restrained. One of their rallying cries for the judiciary is “No more Souters.”

This sharp division among the Republican-appointed justices is not a new development. It explains much of the court’s recent history.

For the last quarter-century, the nine-member high court has never had more than two Democratic appointees at any time. The major battles--whether on abortion, religion, affirmative action, the death penalty or the balance of power between the states and Washington--have been carried out largely as disputes among the Republican appointees.

When Stevens and his jaunty bow tie arrived at the high court in December 1975, he was described as moderate, cautious and scholarly. No one labeled him a liberal.

He had succeeded one, however. Justice William O. Douglas, the last of President Franklin D. Roosevelt’s appointees, had finally retired after 36 years on the court.

The court was then closely split on capital punishment. The justices had struck down the death penalty on a 5-4 vote three years earlier, with Douglas in the majority. Commentators predicted, accurately so, that the more conservative Stevens would vote to uphold capital punishment as constitutional in principle.

In recent years, however, he has been the justice most willing to reverse death sentences in individual cases.

The court’s Republican split also was evident in the spring of 1992, when there was a huge fight over whether to overturn the abortion right established in Roe vs. Wade and whether to weaken the ban on school-sponsored prayers.

In both instances, the conservatives--Chief Justice William H. Rehnquist, an appointee of President Nixon, and Justices Scalia, appointed by President Reagan, and Thomas, an appointee of the former President Bush--fell one vote short. The five-justice majority that stood behind the abortion right and the ban on school prayers consisted entirely of Republican appointees. They were Justices Harry A. Blackmun, a Nixon appointee; Stevens, who was appointed by President Ford; Justices Sandra Day O’Connor and Anthony M. Kennedy, appointees of Reagan; and Souter.

The only Democratic appointee then on the court, Justice Byron White, who had been appointed by President Kennedy, dissented in the original Roe vs. Wade case and joined the conservatives in 1992 in voting to reverse it.

Now second in seniority to Rehnquist, Stevens decides how to handle a decision when he is in the majority.

Last week, the justices, in a 6-3 decision, overturned a death sentence of Johnny Paul Penry, a mentally retarded Texan. Stevens assigned the opinion to Justice O’Connor; Rehnquist, Scalia and Thomas dissented. (The current court’s only two justices appointed by Democrat Bill Clinton are Ruth Bader Ginsburg and Stephen G. Breyer.)

To longtime friends, as well as academics who have observed him, Stevens has changed relatively little over the years.

“We were law clerks at the same time [in the late 1940s]. And when I first met John, his views were those of a mainstream Republican,” said retired federal appeals court Judge Abner Mikva, a Chicago Democrat and former member of Congress. “He doesn’t think he has left his beliefs. What has left him [are] the groups that claim control of the Republican Party.”

“He was always ferociously independent,” said University of Chicago law professor Dennis Hutchison, who was a clerk at the court in the mid-1970s. “He refused to be captured by one ideological camp. He has stayed in the center as the court has moved to the right.”

Stevens was born in Chicago in 1920 and grew up in a wealthy family. His father owned the landmark Stevens Hotel on south Michigan Avenue, which is today the Chicago Hilton & Towers. After service in World War II and a clerkship at the high court, Stevens gained prominence as a corporate litigator and an antitrust expert, when in 1970 President Nixon named him to the U.S. appeals court in Chicago. When Ford selected him for the Supreme Court five years later, he won a 98-0 Senate confirmation less than three weeks after his nomination.

In Stevens’ early years on the high court, he was branded a maverick and a wild card. He was not a predictable vote for the liberals or conservatives.

In the famous Bakke case of 1978, he joined the conservatives in siding with Allan Bakke, a white medical student who claimed he was rejected by UC Davis because of a racial quota. However, Stevens later joined the liberals in voting to uphold a series of affirmative action programs.

Over the last decade, after the retirements of Justices William J. Brennan and Thurgood Marshall, Stevens has emerged as a liberal voice on the court.

He and Souter have been particularly critical of the five-member conservative coalition that since 1995 has struck down a series of federal antidiscrimination laws.

Last year, the 5-4 majority knocked down the Violence Against Women Act, which gave victims of sexual assaults a right to sue their attackers. Stevens and Souter dissented.

In February, the same 5-4 majority threw out a discrimination claim brought by an Alabama nurse who was demoted after she was treated for breast cancer. The ruling in Alabama vs. Garrett declared that state agencies have a “sovereign immunity” that shields them from the federal Americans With Disabilities Act. Stevens and Souter dissented again.

These decisions appear to undercut one of the great achievements of the early Republican Party. After the Civil War, the Republicans who controlled the Reconstruction Congress wrote the 14th Amendment, which gave Congress the power to protect civil rights nationwide.

A former clerk to Souter described him as having a Northerner’s view of civil rights and federal power.

“He is a Yankee Republican,” said William D. Araiza, a professor at Loyola Law School in Los Angeles, who clerked for Souter in the 1991-92 term.

Souter rose to the high court in 1990 with the crucial backing of New Hampshire’s two most prominent Republicans, Sen. Warren B. Rudman and former Gov. John H. Sununu, who was then chief of staff in the Bush White House.

Like Stevens, he succeeded a legendary liberal--in his case Brennan.

As a former state prosecutor, Souter is far more conservative than Brennan on matters of crime and law enforcement. But after he split with Scalia on the issues of abortion rights and school prayer, he was dismissed by conservative activists and derided as a disappointment.

For his part, Souter has not forgotten his roots. He carries the gold watch that was a prize of his great-great grandfather who cast his lot with Abraham Lincoln.