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WASHINGTON – When attorneys step up to the podium to argue before the U.S. Supreme Court, they never know what to expect from the justices, who often interrupt and interject in such a way as to make it hard for counsel to get a word in edgewise.

But when Justice John Paul Stevens leans forward to speak, counsel can always expect a different approach.

"May I ask this question?" Stevens says before beginning almost any query during oral arguments. If the attorney was speaking at the time, Stevens begins with a variation: "May I interrupt?"

The polite style of Stevens – who announced last week that he will retire in June – might be a throwback to a bygone era of gentility on the Court, or just a personal trait of the Chicago native. Either way, don’t let Stevens’ gentle manner fool you, attorneys said.

"I always get up on the balls of my feet when Stevens begins to ask a question because I know it will be difficult and tricky, and will go right to the heart of the case," said Supreme Court litigator David Frederick, partner in the Washington office of Kellogg, Huber, Hansen, Todd, Evans & Figel. "The politeness of his manner is in inverse proportion to the dangerous substance often underlying the question."

"He is extremely polite – and very much to the point," echoed Andrew Pincus, a partner in the Washington office of Mayer Brown. "None of [his questions] are easy."

Sri Srinivasan, a partner in the Washington office of O’Melveny & Myers who also argued before the Court as a Justice Department attorney, said attorneys have little time to revel in Stevens’ politeness.

"He has a … gentlemanly manner which gives you peace, but also gives you trepidation," Srinivasan said. "He’s an exceptionally sharp questioner. He tends to see cases in a way that is not … expected. He’s asking the question in such a gentle way, but you are never quite sure where the question will go."

But in addition to being tough and polite, attorneys said, Stevens’ questions are always fair.

"In my experience, he never asked an unfair question," Frederick said.

‘You can see his eyes sparkle’

Speculation over whether Stevens, who turns 90 next week, would retire from the bench has swirled for years. But retirement rumors reached a fever pitch in recent months as he began to close in on Justice Oliver Wendell Holmes, Jr.’s record as the oldest justice to actively serve on the Court. Stevens will miss that record by a matter of months when he retires this summer, but age never seemed to be an impediment for the justice, lawyers said.

"I argued my first case 25 years ago," said Pincus, "and he looks better and seems, if anything, more on top of what is going on in a case than he did then."

It’s also clear that Stevens enjoys his job tremendously. He’s the first to laugh when one if his colleagues makes a funny remark, and he’s been known to draw a few laughs himself.

"Maybe I shouldn’t ask this," Stevens said to then Solicitor General Gregory Garre during oral arguments in November 2008 in the TV profanity case FCC v. Fox Television Stations , "but is [it] ever appropriate for the Commission to take into consideration at all the question whether the particular remark was really hilarious? [If it's] very, very funny?"

The crowd in the Supreme Court building laughed, and Stevens continued, chuckling himself.

"Some of these things you can’t help but laugh at," he said.

"There is often a countenance on his face that expresses his happiness of the work," Pincus said. "You can see his eyes sparkle when someone cracks a joke."

The fact that he enjoys the job is evidenced by the toughness of his questions, Frederick said.

"I believe what has sustained Justice Stevens for so long is that he loves the challenges of the law, and the puzzles presented by the law and the cases," Frederick said. "He enjoys wrestling with and trying to solve those puzzles. I think he’s found great mental stimulation from the challenge of trying to understand the best way to work through these cases."

Last of the species?

Will Stevens’ departure from the bench after 35 years mark the end of an age when justices politely ask "May I?"

"I hope not," Frederick said. "Our system works best if civil discourse is observed, and Justice Stevens is one of our greatest exemplars of civil discourse. The ability to interrogate politely, to disagree politely, to maintain composure and equanimity and balance and modesty – all of these are qualities that are important for the system to work best."

Srinivasan said he too remains hopeful.

"It depends on the style of person who replaces him," Srinivasan said. "Perhaps he’ll be replaced by someone who has the same reassuring and calming manner that advocates can take solace in. It’s a genuine pleasure to argue before him and he will be sorely missed."

Questions or comments can be directed to the writer at: kimberly.atkins@lawyersusaonline.com

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