Justice John Paul Stevens is retiring. A great legal mind, and from most accounts, a humble and friendly guy, he will be missed (by some). However, as the young man closes in on 90 years of age, it might be a good time to call it a day. I hope he enjoys retirement.
Supreme Court Justice John Paul Stevens
Stevens initially made his name in 1969. According to the NYT,
Stevens turned down an offer to teach at Yale Law School and instead became an antitrust lawyer in Chicago. He joined forces with moderate and liberal good-government Democrats, who were opposed to the corruption of the Daley machine. In 1969, he was appointed to investigate a political scandal on the Illinois Supreme Court, an investigation that made his professional reputation. A citizen activist named Sherman Skolnick accused the chief justice and another Illinois Supreme Court justice of accepting bank stock from a politically connected Chicago lawyer in exchange for deciding a case in his favor. The Illinois Supreme Court set up a special commission to investigate the allegations, and Stevens was appointed general counsel. After a six-week investigation, culminating in Stevens’s dramatic courtroom examination of the accused justices, the commission concluded that both men had, in fact, violated canons of judicial ethics, and both resigned.
Ah, Illinois Politics. Reliable to many a fault.
Stevens was first appointed to the Federal Bench (7th Cir.) by President Nixon in 1970, and then nominated for the SCOTUS by President Ford in 1975. This is an excellent illustration of just how radically right the political + judicial moneychangers have trended over the last few decades, while we remain a center-left country. In fact, for whatever it’s worth, Stevens considers himself a “judicial conservative,” an admirer of Republican Centrist Potter Stewart. Yet he has been labeled, among other things, the “Chief Justice of the Liberal Supreme Court.”
- Stevens drafts most of his opinions himself. He is fierce in dissent, and has a reputation as a tireless worker.
- He has occasionally been criticized for a lack of consistency. Yet instead of haughtily adhering to some unyielding or convenient self-serving dogma, Stevens addresses each case issue on its own, acknowledging the practical effects of the Court’s decisions.
- Death Penalty: Case in point, Stevens sided with the majority in Gregg v. Georgia, which overruled Furman v. Georgia, 408 U.S. 238 (1972) and again allowed the use of the death penalty in the United States. Yet in a practical and (in my view) appropriately moral turn in later cases, Stevens held that the Constitution forbids the use of the death penalty in certain circumstances (juvenile offenders). He opined that “state-sanctioned killing is…becoming more and more anachronistic” and agreed with former Justice White‘s assertion that “the needless extinction of life with only marginal contributions to any discernible social or public purposes…would be patently excessive” in violation of the Eighth Amendment (quoting from the concurrence of Byron White in Furman).
- Affirmative Action: In 1980, Stevens dissented from the court’s decision upholding racial preferences in federal contracting, explosively comparing them with the Nazi laws excluding Jews from citizenship. More recently, however, he has voted enthusiastically to uphold affirmative action in universities and public-school enrollment plans, comparing them to welcome mats rather than no-trespassing signs. To Stevens, however, his views have been consistent. “There’s a tremendous difference in using affirmative action when you get a group to build a highway and affirmative action in the educational context,” he told me. “I think my rhetoric was probably a little strong,” he continued, but the federal law authorizing racial preferences for highway contracts was a “slapdash statute” that was based on pork-barrel politics, benefiting one group of contractors rather than citizens as a whole. In schools and universities, by contrast, “the whole student body profits from having diversity in the classes. So I really don’t think I’ve changed my views about this.”
- First Amendment: In Wallace v. Jaffree, 472 U.S. 38 (1985), striking down an Alabama statute mandating a minute of silence in public schools “for meditation or silent prayer”, Stevens wrote the Opinion for a majority affirming that the Establishment Clause is binding on the States via the Fourteenth Amendment, and that: “Just as the right to speak and the right to refrain from speaking are complementary components of a broader concept of individual freedom of mind, so also the individual’s freedom to choose his own creed is the counterpart of his right to refrain from accepting the creed of the majority. At one time, it was thought that this right merely proscribed the preference of one Christian sect over another, but would not require equal respect for the conscience of the infidel, the atheist, or the adherent of a non-Christian faith such as Islam or Judaism. But when the underlying principle has been examined in the crucible of litigation, the Court has unambiguously concluded that the individual freedom of conscience protected by the First Amendment embraces the right to select any religious faith or none at all.”
- Women’s Rights: Abortion is another area in which Stevens has insisted on the duty of the government to act impartially rather than favoring some groups over others for sectarian reasons. He has suggested that restrictions on a woman’s right to choose may be unconstitutional because they reflect religiously motivated views about human life — thus violating the government’s responsibility under the First Amendment to be neutral between religious and secular viewpoints. “I think the less judges have to decide the better, and I frankly look at who should decide this,” he told me. “Obviously, I think basically the woman is the person most affected by it and has tremendously important interests; better to have her decide these questions with her own counselors and guidance than to have judges and legislators deciding something like this.” Amen to that.
- Fourth Amendment: Stevens has a generally liberal voting record on the Fourth Amendment, which deals with search and seizure. Stevens authored the majority opinion in Arizona v. Gant, which held that “[p]olice may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.” On April 30, 2007, Stevens was the lone dissenter in an 8–1 ruling holding that high-speed police chases that result in death or serious injury do not violate the Fourth Amendment (Scott v. Harris, 550 U.S. 372(2007)). Stevens maintained that the videotape evidence was not decisive and that a jury should determine if deadly force is justified, not “a group of elderly appellate judges.”
- Executive Power: Another of Stevens’s longstanding themes is the need for judicial oversight of broad claims of executive power. Stevens’s repeated insistence that the president isn’t above the law has led him to rule not only against President Bush in cases concerning the prosecution of the war on terror but also against President Clinton in Clinton v. Jones, in which Stevens wrote the majority opinion in 1997 allowing the Paula Jones sexual-harassment suit to proceed while Clinton was in office. I mentioned that many people had ridiculed his prediction that the Clinton v. Jones case “appears to us highly unlikely to occupy any substantial amount of” the president’s time. Nevertheless, Stevens insisted, it wasn’t fair to blame the court for having precipitated Clinton’s impeachment. “The issue in that case was whether he could have the trial postponed until he left office. But everyone agreed that the deposition had to go forward — even Clinton’s lawyers,” he said. “So the decision had absolutely no impact on the impeachment, but I know I get heat for it.”
During the GWB years, it was sometimes hard to distinguish the President from a monarch, as rapid expansion of executive power was used to rationalize many Bush policies (where were you then, teabaggers?).
In Hamdan, the Supreme Court, with Justice Stevens in the majority, held that Bush lacked the legal authority to create military commissions without approval from Congress, i.e., the Court (and Stevens) found Bush lacked the “legal authority.”
- A pragmatic critic of the impractical and self-serving “originalist” (when convenient) doctrine touted by Scalia-Thomas, Stevens “saw it as his role to interpret the Constitution with fidelity to all of American history.” Of course, originalism can be used to justify conservative or liberal decisions. As Stevens said, “Originalism is perfectly sensible. I always try to figure out what the original intent was, but to say that’s the Bible and nothing else counts seems to me quite wrong.”
Some legal scholars view Stevens’s sense of history as a reason for his warm embrace by liberals. “Stevens became the leader of the left on the court,” says Robert Post, a professor at Yale Law School, “because he’s able to say, ‘I remember, and I’m faithful to what has happened in the past, but my fidelity is to all of American history.’ ”
I admire Justice Stevens because he’s one of the Court’s last protectors of individual rights, and a staunch voice against recent trends expanding executive power. While many centrists and liberals were (appropriately) concerned about Justice Alito’s appointment, it has been Chief Justice Roberts who has led the assault on the individual. As Jeffrey Toobin wrote last year,
In every major case since he became the nation’s seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff. Even more than Scalia, who has embodied judicial conservatism during a generation of service on the Supreme Court, Roberts has served the interests, and reflected the values, of the contemporary Republican Party.
As a major counter-weight to the radically Conservative leaders of the SC, there’s no doubt Stevens will be missed. President Obama prized judicial experience and intellectual capacity when he nominated Justice Sotomayor to the bench last year. Hopefully, he’ll nominate another qualified justice in the mold of Stevens.
Even as his opinions have made him a model for liberals around the country, Stevens is more interested in demonstrating his intellectual consistency and temperament as a judge’s judge. “You write what you think is correct and important,” he told me matter-of-factly. “I don’t consider myself a mobilizer.”
Justice Stevens began his public service on December 6, 1941 when he enlisted in the Navy and eventually joined its intelligence service. He earned a Bronze Star for his cryptography work which helped break the Japanese codes. A good run. And not a bad time to hang up the robe. Enjoy retirement, Justice Stevens. See you at Wrigley.