The New Yorker
Profiles
After Stevens: What will the Supreme Court be like without its liberal
leader?
by Jeffrey Toobin
March 22, 2010
Stevens, asked if he regrets any recent Court decisions, says, “There are a lot
I’m very unhappy with.” Photograph by Steve Pyke.
An interview with Jeffrey Toobin on NPR's "Fresh Air" can be heard
here.
Supreme Court Justices are remembered for their opinions,
but they are revealed by their questions. For many years, Sandra Day O’Connor
chose to open the questioning in most cases, and thus show the lawyers—and her
colleagues—which way she, as the Court’s swing vote, was leaning. Today, Antonin
Scalia often jumps in first, signalling the intentions of the Court’s ascendant
conservative wing, and sometimes Chief Justice John G. Roberts, Jr., makes his
views, which are usually aligned with Scalia’s, equally clear. New Justices tend
to defer to their senior colleagues, but Sonia Sotomayor, in her first year on
the Court, has displayed little reluctance to test lawyers on the facts and the
procedural posture of their cases; these kinds of questions had generally been
the province of Ruth Bader Ginsburg, who, at times, has not seemed entirely
pleased by the newcomer’s vigor. Samuel A. Alito, Jr., often says little;
Clarence Thomas never says anything. (Thomas has not asked a question at an oral
argument since 2006.)
John Paul Stevens, who will celebrate his ninetieth birthday on April 20th,
generally bides his time. Stevens is the Court’s senior Justice, in every
respect. He is thirteen years older than his closest colleague in age (Ginsburg)
and has served eleven years longer than the next most experienced (Scalia).
Appointed by President Gerald R. Ford, in 1975, Stevens is the
fourth-longest-serving Justice in the Court’s history; the record holder is the
man Stevens replaced, William O. Douglas, who retired after thirty-six and a
half years on the bench. Stevens is a generation or two removed from most of his
colleagues; when Roberts served as a law clerk to William H. Rehnquist, Stevens
had already been a Justice for five years. He was the last nominee before the
Reagan years, when confirmations became contested territory in the culture wars
(and he was also, not coincidentally, the last whose confirmation hearings were
not broadcast live on television). In some respects, Stevens comes from another
world; in a recent opinion, he noted that contemporary views on marijuana laws
were “reminiscent of the opinion that supported the nationwide ban on alcohol
consumption when I was a student.”
Ever since last fall, when it emerged that Stevens had hired only one law clerk
for the next year, instead of his customary four, there has been growing
speculation that he will soon retire. Since 1994, Stevens has been the senior
Associate Justice and so has been responsible for assigning opinions when the
Chief Justice is not in the majority. He has used that power to build coalitions
and has become the undisputed leader of the resistance against the conservatives
on the Court. “For those fifteen years, John Stevens has essentially served as
the Chief Justice of the Liberal Supreme Court,” Walter Dellinger, who was the
acting Solicitor General in the Clinton Administration and is a frequent
advocate before the Court, says. In Stevens’s absence, leadership of the Court’s
liberals would fall, by seniority, to Ginsburg, but she is also elderly and has
suffered from a range of health problems. Even if President Obama appointed a
like-minded replacement for Stevens, that person, while taking his seat, would
not fill his role.
Stevens is an unlikely liberal icon. When he was appointed, he told me recently,
he thought of himself as a Republican and always had—“ever since my father voted
for Coolidge and Harding.” He declined to say whether he still does. For many
decades, there have been moderate Republicans on the Court—John M. Harlan II and
Potter Stewart (appointed by Eisenhower), Lewis F. Powell and Harry Blackmun
(Nixon), David H. Souter (Bush I). Stevens is the last of them, and his
departure will mark a cultural milestone. The moderate-Republican tradition that
he came out of “goes way back,” Stevens said. “But things have changed.”
So has Stevens. His positions have evolved on such issues as civil rights and
the death penalty, and he has led the Court’s counteroffensive against the Bush
Administration’s treatment of the detainees at Guantánamo Bay. And, as Stevens’s
profile has risen, and his views have moved left, so, too, has criticism of him
from conservatives reached a higher pitch. “From the beginning of his time as a
Justice, you could see Stevens’s roots in the New Deal Court and his willingness
to justify an expanding welfare state,” Richard Epstein, a libertarian-leaning
law professor at New York University, said. “On these issues, he’s been
consistent and consistently wrong about everything—and highly influential.”
Still, Stevens’s views suggest a sensibility more than a philosophy. Many great
judicial legacies have a deep theoretical foundation—Oliver Wendell Holmes’s
skeptical pragmatism, William J. Brennan’s aggressive liberalism, Scalia’s
insistent originalism. Stevens’s lack of one raises questions about the
durability of his influence on the Court.
But, more than anything, his career shows how the Court has become a partisan
battlefield. In that spirit, Roberts last week denounced President Obama’s
criticism of the Court in his State of the Union address, saying that the
occasion had “degenerated to a political pep rally.” When Stevens leaves, the
Supreme Court will be just another place where Democrats and Republicans fight.
Stevens tends to weigh in at oral argument at around the halfway point, and he
does something that none of his colleagues do: he asks permission. “May I ask
you a question?” or “May I ask you this?” Frequent advocates find this tic
amusing and endearing, a little like the bow ties that he always wears. “However
Justice Stevens is going to come out on an issue, he is going to do it in a way
that is very friendly and avuncular and good-natured,” Paul Clement, who was
George W. Bush’s Solicitor General from 2005 to 2008, says. “He’ll say something
like ‘This is probably obvious, but I have this one question. Could you help me
with this one point?’ An experienced advocate knows that you have to be on your
guard, because he’s probably found the one issue that puts your case on the
line.” Jeffrey Fisher, who clerked for Stevens in the 1998-99 term and is now a
professor at Stanford, says, “The reason he very rarely speaks first is that he
really listens to his colleagues and tries to figure out what is on their minds
and tries to figure out what the swing votes care about in the case.”
On September 9th last year, Stevens engaged in a classic version of
advocacy-by-interrogation during the argument of Citizens United v. Federal
Election Commission. The Court was hearing the case before the first Monday in
October, the traditional start of its year—an indication of how important some
of the Justices thought it was. In 2008, Citizens United, a right-leaning
nonprofit organization, had used some corporate contributions, along with money
from individuals, to produce and promote a documentary critical of Hillary
Clinton. (“She is steeped in controversy, steeped in sleaze,” the narrator
says.) The group planned a video-on-demand broadcast on the eve of several
Democratic primaries. But the Bipartisan Campaign Reform Act of 2002 (also known
as McCain-Feingold, after its two chief sponsors) forbids political
advertisements paid for by corporations in the weeks before a primary. Citizens
United challenged the law, asserting that its right to freedom of speech was
violated.
The Court had first heard arguments in the case in March, 2009, and the
questions raised then were mostly narrow ones—whether McCain-Feingold pertained
to video-on-demand technology, for example. Months passed without a decision.
But, in June, the Court issued an unsigned order asking for the case to be
reargued on new terms. Such an order, which requires a majority, had never been
issued since Roberts became Chief Justice, in 2005, and only rarely in earlier
years. The Court now told the lawyers to address much broader issues about the
relationship of corporations to the First Amendment. Specifically, it asked
whether two decisions, from 1990 and 2003, which upheld restrictions on
corporate speech, should be overturned.
For a century, Congress and the Supreme Court had been restricting the
participation of corporations, and individuals, in elections, mostly through
limits on campaign contributions. The Court had come to see campaign spending as
a form of speech, but one that clearly could be regulated, especially if the
speaker was a business. The notion that corporations did not have the same
free-speech rights as human beings had been practically a given of
constitutional law for decades, and the 1990 and 2003 decisions (both joined by
Stevens) reflected that consensus. Now the Court seemed open to what had been
radical notions—that corporations had essentially the same rights as
individuals, and could spend potentially unlimited amounts of money in
elections.
Stevens never uses his questions to filibuster, and his first query was simple.
“Does the First Amendment permit any distinction between corporate speakers and
individual speakers?” he asked Theodore B. Olson, the lawyer for Citizens United
and a Solicitor General in the second Bush Administration.
Olson hedged, saying, “I am not—I’m not aware of a case that just—”
“I am not asking you that,” Stevens persisted. “I meant in your view does it
permit that distinction?”
Finally, Olson said, “I would not rule that out, Justice Stevens. I mean, there
may be.”
Stevens was trying to alert his colleagues to the extreme shift in the law the
case implied. But Roberts, Scalia, Thomas, and Alito had already made plain that
they were seeking just such a change. As has often been the case, Stevens’s only
hope appeared to be to get the vote of Anthony M. Kennedy, to make a majority
with himself, Ginsburg, Stephen G. Breyer, and Sotomayor. (So far, Sotomayor
seems to be voting much like Souter, an ally of Stevens, whom she replaced.)
When Elena Kagan, the Solicitor General, rose to defend McCain-Feingold, Stevens
had his chance.
Stevens asked Kagan if it would be possible for the Court to rule narrowly.
There could, for example, be an exception for nonprofits like Citizens United,
or for “ads that are financed exclusively by individuals even though they are
sponsored by a corporation.” Kagan, grasping the lifeline that Stevens was
throwing her, said, “Yes, that’s exactly right.”
“Nobody has explained why that wouldn’t be a proper solution, not nearly as
drastic,” Stevens went on. “Why is that not the wisest narrow solution of the
problem before us?”
His strategizing was for naught. In a decision announced on January 21st,
Kennedy, joined by the four conservatives, wrote a breathtakingly broad opinion,
overturning the 1990 decision and much of the 2003 decision, and establishing,
for the first time, that corporations have rights to free speech comparable to
those of individuals. In the 1990 case, the Court’s majority opinion cited “the
corrosive and distorting effects of immense aggregations of wealth that are
accumulated with the help of the corporate form and that have little or no
correlation to the public’s support for the corporation’s political ideas.”
Kennedy’s opinion simply asserted that “independent expenditures, including
those made by corporations, do not give rise to corruption or the appearance of
corruption.”
Stevens’s ninety-page dissenting opinion in Citizens United (the longest of his
career) was joined in full by Ginsburg, Breyer, and Sotomayor, and was a
slashing attack on the majority, laden with sarcastic asides. “Under the
majority’s view, I suppose it may be a First Amendment problem that corporations
are not permitted to vote, given that voting is, among other things, a form of
speech,” he wrote.
To make his displeasure clear, Stevens read his dissent from the bench. Justices
usually read pared-down versions of published opinions, but Stevens prepared a
twenty-minute stem-winder. When the moment came, however, he stumbled
frequently, skipped words, and, at times, was hard to understand. (As when he
said, “As the corp, court has long resembled . . .”) For the first time in
public, Stevens looked his age.
Stevens charged that the way the majority had handled the case was even worse
than the legal outcome. “There were principled, narrower paths that a Court that
was serious about judicial restraint could have taken,” he wrote. “Essentially,
five justices were unhappy with the limited nature of the case before us, so
they changed the case to give themselves an opportunity to change the law.” He
added, referring to the Court, “The path it has taken to reach its outcome will,
I fear, do damage to this institution.” It suggested that, after thirty-five
years on the Supreme Court, John Paul Stevens was about to walk away from a
place he no longer recognized.
Several weeks later, I sat with Stevens in his sun-streaked chambers at the
Court. He had begun his day with a tennis game (singles), then showered and
changed into a white dress shirt, suit, and bow tie at the Court. He wears a
hearing aid, but walks at an athlete’s loping pace and shakes hands with a
punishing grip; he keeps two well-used putters on hand to practice his short
game on the office carpet.
For many years, Stevens, who grew up in Chicago, and his wife have divided their
time between Washington and Fort Lauderdale, where they own a condominium. In
the nineteen-eighties, Court insiders dubbed Stevens the FedEx Justice, because
he spent so much time in Florida and corresponded with his chambers by overnight
mail. Stevens still flees Washington at every opportunity, especially in the
winter (though he now communicates electronically). He deals with his colleagues
mostly by memorandum, occasionally by telephone, and rarely in person, except
when the Court is in session. His law clerks report that months go by without
another Justice visiting his chambers. Under Chief Justice Rehnquist, most of
the Justices kept their distance from one another, and this has continued under
Roberts, but Stevens in particular is, while cordial, remote.
Yet in person Stevens is as genial as he appears on the bench. He is ever
hopeful about his home-town Cubs, and a devoted player, and fan, of golf—“though
I have to confess, I miss Tiger.” His financial-disclosure form lists honorary
memberships in four country clubs—near Chicago, near Indianapolis, near
Washington, and in Florida. But when, in our conversation, the subject turned to
the contemporary Supreme Court Stevens’s tone darkened.
I asked him if the center of gravity had moved to the right since he became a
Justice. “There’s no doubt,” he said. “You don’t have to ask me that. Look at
Citizens United.” He added, “If it is not necessary to decide a case on a very
broad constitutional ground, when other grounds are available, then doesn’t that
create the likelihood that people will think you’re not following the rules?”
Stevens doesn’t pretend that he’s more in tune with the Court than he is. When I
asked him if there were any cases he especially regretted, he said, “Dozens.
There are a lot I’m very unhappy with.” The first two that came to mind:
District of Columbia v. Heller, in which the Court, in 2008, recognized an
individual’s right to own weapons under the Second Amendment; and Bush v. Gore,
halting the recount that the Florida Supreme Court had ordered in the 2000
Presidential race. He was in the minority in both.
On some subjects, his own views have shifted. Writing on affirmative action, in
1980, he noted, “If the National Government is to make a serious effort to
define racial classes by criteria that can be administered objectively, it must
study precedents such as the First Regulation to the Reich’s Citizenship Law of
November 14, 1935”; yet in 2003 he engineered the preservation of racial
preferences in admissions in a case involving the University of Michigan Law
School. In 1976, he joined his colleagues in ending a moratorium on the death
penalty; in 2008, he wrote that executions are “patently excessive and cruel and
unusual punishment violative of the Eighth Amendment.” Stevens has always
supported abortion rights and an expansive notion of freedom of speech.
In all areas, Stevens has favored gradual change over sudden lurches and
precedent over dramatic overrulings. But, especially since Roberts took over as
Chief Justice, Stevens has found himself confronting colleagues who have a very
different approach—an aggressive, line-drawing conservatism that appears bent on
remaking great swaths of Supreme Court precedent.
On a wall in Stevens’s chambers that is mostly covered with autographed
photographs of Chicago sports heroes, from Ernie Banks to Michael Jordan, there
is a box score from Game Three of the 1932 World Series, between the Yankees and
the Cubs. When Babe Ruth came to bat in the fifth inning, at Wrigley Field,
according to a much disputed baseball legend, he pointed to the center-field
stands and then proceeded to hit a home run right to that spot. The event is
known as “the called shot.”
“My dad took me to see the World Series, and we were sitting behind third base,
not too far back,” Stevens, who was twelve years old at the time, told me. He
recalled that the Cubs players had been hassling Ruth from the dugout earlier in
the game. “Ruth did point to the center-field scoreboard,” Stevens said. “And he
did hit the ball out of the park after he pointed with his bat. So it really
happened.”
Stevens has a reverence for facts. He mentioned that he vividly recalled Ruth’s
shot flying over the center-field scoreboard. But, at a recent conference, a man
in the audience said that Ruth’s homer had landed right next to his grandfather,
who was sitting far away from the scoreboard. “That makes me warn you that you
should be careful about trusting the memory of elderly witnesses,” Stevens said.
The box score was a gift from a friend; Stevens noticed that it listed the wrong
pitchers for the game, so he crossed them out with a red pen, and wrote in the
right names.
This meticulousness is evident in Stevens’s judicial writing. Most Supreme Court
Justices, if they write first drafts of their opinions at all, concentrate on
the legal analysis, which usually includes the flowery language that gets quoted
in newspapers and textbooks; it is for their law clerks to write up the facts of
the case, the driest part. Stevens always does the facts himself (and says he
does all the other drafting, too). For many years, his was the only chambers to
review individually the thousands of petitions for certiorari that come to the
Court each year; the others pooled their efforts. (Alito also recently left the
cert. pool.)
It was not a surprise that Ernest Stevens, the Justice’s father, got tickets to
the World Series. The Stevenses were prominent citizens of Chicago. The
Justice’s grandfather James Stevens had gone into the insurance business, and,
with the profits, he and his sons Ernest and Raymond bought land on South
Michigan Avenue and built what was then the biggest hotel in the world, with
three thousand rooms. The Stevens Hotel opened in 1927, and featured a range of
luxurious services, a bowling alley, and a pitch-and-putt golf course on the
roof. There was a big, stylized “S” over the main entrance. “We stayed at the
hotel sometimes, every now and then,” Stevens told me. “I have pleasant
memories, and there are also some unpleasant aspects of it, too.”
The Depression hit the family hard. As chronicled in “John Paul Stevens: An
Independent Life,” a biography by Bill Barnhart and Gene Schlickman, which will
be published in May, questions arose about whether the Stevens family had
embezzled funds from the insurance company to prop up the hotel. In January,
1933, three months after Ruth’s called shot, the Chicago Herald-Examiner
reported, “The Stevens children were sent to bed so they could not see their
father arrested.” After Ernest Stevens was released on bail, according to the
new biography,
"four men brandishing a submachine gun, two shotguns, and a revolver ransacked
the Stevens home in search of cash. Ernest and Elizabeth and two of their
children, William, age fifteen, and John, age twelve, as well as the family cook
and two maids, were herded upstairs and held in a bedroom after one of the boys
was forced to open a safe in the first-floor library."
It remains unclear whether the intruders were police officers or gangsters (or
both), but they found no secret stash of cash.
Later in 1933, the patriarch, James, had a debilitating stroke. A few days
afterward, John’s uncle, Raymond, committed suicide rather than endure the
disgrace of a criminal prosecution. Ernest Stevens thus had to go to trial
alone, and in the toxic environment of the Depression he was swiftly convicted.
He faced ten years in state prison. Deliverance came in 1934, when his appeal
reached the Illinois Supreme Court and the justices unanimously reversed his
conviction. “In this whole record there is not a scintilla of evidence of any
concealment or fraud attempted,” the decision said. Still, the family never
recovered its former wealth, and lost control of the hotel. (It is now known as
the Chicago Hilton and Towers; the “S” is still there.)
“It was a tough period, no doubt about it,” Stevens told me. Notably, what saved
his father was an appellate court. Stevens dismisses the connection as a
“coincidence,” adding, “Of course, I respected the decision, but I was pretty
young at the time—though I remember the words ‘not a scintilla of evidence.’ ”
The influence may be greater than Stevens acknowledges. His jurisprudence is
distinguished by his confidence in the ability of judges to resolve difficult
issues. “Generally, he respects the heck out of the profession of which he’s a
member,” Deborah Pearlstein, a research scholar at Princeton who clerked for
Stevens in 1999-2000, said. “Whether you take the examples from his personal
life, or the litany of cases he’s heard in decades on the bench, his reliance on
and confidence in judges to find out the truth was pretty unswerving.” Writing
for a unanimous Court in 1997, Stevens rejected Bill Clinton’s argument that the
Paula Jones case should be postponed until after his Presidency so that it would
not interfere with his duties: “If properly managed by the District Court, it
appears to us highly unlikely to occupy any substantial amount of [Clinton’s]
time.” (“I get razzed a lot for predicting there wouldn’t be anything to come
out of the case,” Stevens told me, “because they were, in effect, saying that
the opinion is what triggered the impeachment and all the rest of it.” But, he
said, “the opinion really had absolutely nothing to do with what followed,
because the only issue was when the trial was going to occur, not whether it
would occur. And it was agreed by everybody that discovery would go forward. So
we are not responsible for the fact that they took the deposition, and the
deposition is what got the President in trouble.”)
In Bush v. Gore, Stevens framed his colleagues’ decision as an insult to the
judicial role, one that could, he wrote, “only lend credence to the most cynical
appraisal of the work of judges throughout the land.” In words that became
better known than anything in the collectively written majority decision, he
continued:
"Although we may never know with complete certainty the identity of the winner
of this year’s Presidential election, the identity of the loser is perfectly
clear. It is the Nation’s confidence in the judge as an impartial guardian of
the rule of law."
John Stevens rallied from the family trauma of his teen-age years and excelled
at the Lab School of the University of Chicago. (Sasha and Malia Obama were
students there; the Obamas lived about a mile away from where Stevens grew up,
on the city’s South Side.) He enrolled at the university in 1937. He was the
editor of the newspaper, a stalwart of the tennis team, the head class marshal,
a member of Phi Beta Kappa. Toward the end of his undergraduate career, the dean
of students, Leon P. Smith, rather mysteriously suggested that he take a
correspondence course, and Stevens did. He later learned, he said, that Smith
“was an undercover naval officer who had been asked to see if he could get
people interested in cryptography. Somewhere toward the end of November of 1941,
they sent me a letter that said you’ve completed enough of the assignment, so
you’re now eligible to apply for a commission.” He enlisted on December 6, 1941.
“The next day, the war started,” he said.
Stevens spent most of 1942 in Washington, learning to analyze enemy
transmissions, before being transferred to Pearl Harbor, where he served until
1945. “All of the intercepted Japanese traffic would come over the desk,” he
said. “I was responsible for a twenty-four-hour period. The timing was such that
when I came on, which would be eight o’clock in the morning, you know, that
would correspond to a new day in Japan.” He went on, “I’d write up a report for
Captain Layton, who was the intelligence officer for Admiral Nimitz. And we
would give a summary of what we could learn from the day’s traffic.”
Like many veterans, Stevens will shed a customary reserve to share a war story.
He tries to have lunch with the law clerks from the chambers of each of his
colleagues in the course of a year. Thomas Lee, who clerked for Souter in
2001-02, during his lunch with Stevens mentioned that he, too, had been a Navy
cryptologist. “I told him that I had served almost exactly fifty years after he
did, and in the same place—in the Pacific,” Lee, who is now a professor at
Fordham Law School, told me. “He asked me to stop by his chambers so we could
continue talking about it.” Lee did, and the Justice told him about a moral
dilemma that had haunted him for decades.
In April, 1943, a coded message came across Stevens’s desk—“one eagle and two
sparrows, or something like that,” he said. Stevens knew the transmission meant
that an operation based on intelligence from his station had been a success.
American aviators had tracked and shot down the airplane of Admiral Isoroku
Yamamoto, who was the architect of the Japanese attack on Pearl Harbor and the
leader of Axis forces in Midway. Stevens was a twenty-three-year-old lieutenant,
and the mission, essentially a targeted assassination, troubled him. “Even at
the time, it seemed to me kind of strange that you had a mission that was
intended to kill a particular individual,” he told me. “And it was an individual
who was a friend of some of the Navy officers.” (Before the war, Yamamoto had
trained with the U.S. Navy and studied at Harvard.) Ultimately, Stevens
concluded that the operation, which was approved by President Roosevelt, was
justified, but the moral complexity of such a killing, even in wartime, stayed
with him. “It is a little different than your statistics about so many thousands
of highway deaths—that doesn’t mean all that much,” he said. “But if somebody
you know is killed, you have an entirely different reaction.” The morality of
military action became a lifelong preoccupation.
Veterans of the Second World War dominated American public life for decades, but
Stevens is practically the last one still holding a position of prominence. He
is the only veteran of any kind on the Court. (Kennedy served briefly in the
National Guard; Thomas received a student deferment and later failed a medical
test during Vietnam.) “Somebody was saying that there ought to be at least one
person on the Court who had military experience,” Stevens told me. “I sort of
feel that it is important. I have to confess that.” The war helped shape his
jurisprudence, and even today shapes his frame of reference. In his dissent in
Citizens United, he questioned the majority’s insistence that the United States
government could never discriminate on the basis of the identity of a speaker by
saying, “Such an assumption would have accorded the propaganda broadcasts to our
troops by ‘Tokyo Rose’ during World War II the same protection as speech by
Allied commanders.” Since Tokyo Rose is not exactly a contemporary reference,
Stevens told me, “my clerks didn’t particularly like that.”
Stevens’s Second World War experience also played a part in perhaps his most
anomalous opinion as a Justice. In 1989, he dissented from the decision that
protected the right to burn the American flag as a form of protest. “The ideas
of liberty and equality have been an irresistible force in motivating leaders
like Patrick Henry, Susan B. Anthony, and Abraham Lincoln, schoolteachers like
Nathan Hale and Booker T. Washington, the Philippine Scouts who fought at
Bataan, and the soldiers who scaled the bluff at Omaha Beach,” he wrote in an
unusually lyrical dissent. “If those ideas are worth fighting for—and our
history demonstrates that they are—it cannot be true that the flag that uniquely
symbolizes their power is not itself worthy of protection.”
“The funny thing about that case is, the only consequence of it—nobody burns
flags anymore,” Stevens told me. “It was an important symbolic form of protest
at the time. But nobody does it anymore. As long as it’s legal, it’s not a big
deal. You just don’t have flag burning.”
The war followed Stevens at the beginning of his legal career, too. After being
discharged, in 1945, he raced through Northwestern Law School in two years,
winning valedictorian honors. (He also acquired a new name, at least
professionally. “I had a professor who said that every lawyer should have
something unique about them,” he told me. “Some people sign their names in green
ink, some people did other things. I had this very boring name. Who can remember
‘John Stevens’? So I added my middle name. I’ve used it ever since for work, but
my friends have always called me John.”) Stevens earned a Supreme Court
clerkship with Justice Wiley B. Rutledge, an F.D.R. appointee. In his year at
the Court, Stevens worked on a case, Ahrens v. Clark, that had echoes sixty
years later.
The matter grew out of the wartime detention of some hundred and twenty
German-born U.S. residents, who were still being held at Ellis Island in 1948.
The issue was whether these detainees had the right to challenge their
incarceration in an American court. In a memo to Rutledge, Stevens wrote, “I
should think that even an alien enemy ought to be entitled to a fair hearing on
the question whether he is in fact dangerous.” Nevertheless, a six-to-three
majority saw it the other way, so Rutledge and his twenty-eight-year-old clerk
collaborated on a lengthy dissent, which said that the majority had torn at “the
roots of individual freedom.”
Rutledge and Stevens were vindicated in 1973, when the Court effectively
overruled its Ahrens precedent in a case involving the Kentucky legal system,
but the issue of the rights of enemy aliens in wartime largely disappeared from
the Court’s docket for many decades. It returned with a vengeance in the second
Bush Administration. As Stevens said of the Ahrens dissent, with typical
understatement, “It was relevant in the Guantánamo case.”
After his clerkship, Stevens returned to Chicago and took a job at one of the
city’s first religiously integrated law firms. Abner Mikva clerked on the
Supreme Court the year after Stevens, then returned to Chicago to start a career
in public life. “Those were the days when there was such a thing as a moderate
Republican, and that’s what he was,” Mikva said of Stevens. “He was a pretty
conservative Republican on economic issues, but he was always a great
progressive on civil rights and social rights.”
Stevens’s career resembled that of moderate Republicans like Harlan, Stewart,
and Powell. All were successful corporate lawyers who leavened their private
practice with periods of public service. Three years after joining the firm,
Stevens did another short stint in Washington, this time as a lawyer on the
Republican staff of the House Judiciary Committee, where he worked on antitrust
issues. Back in Chicago, he became a widely renowned antitrust litigator while
enjoying the life of a golf-playing suburban burgher. He and his wife, Betty,
had four children, two of them adopted, and he took up flying a private plane as
a hobby, which also enabled him to visit clients around the Midwest.
Robert H. Bork, the conservative scholar who was an unsuccessful nominee to the
Supreme Court, was also an antitrust lawyer in Chicago in the late fifties, and
in one case he and Stevens represented co-defendants. “I found him an amiable
man, with conventional views for the time, and he gave no hint that he would
become such a liberal in later years,” Bork told me.
Stevens likely would have lived out his life in prosperous obscurity if one of
Chicago’s periodic corruption scandals hadn’t intervened. A local character, a
wheelchair-bound frequent litigant named Sherman Skolnick, alleged that two
justices on the Illinois Supreme Court had taken bribes to sway their votes in a
political-corruption case. The court formed a committee to investigate, which
appointed Stevens as its counsel. In a series of dramatic hearings in 1969,
Stevens established that the two judges had indeed taken bribes. Both resigned,
and Stevens became a public figure. The next year, Senator Charles Percy, an
Illinois Republican, put Stevens up for a judgeship on the Court of Appeals for
the Seventh Circuit. Richard Nixon followed Percy’s advice, and, in 1970,
Stevens began his judicial career.
Gerald Ford, coming into office in 1974, sought to demonstrate a renewed
commitment to ethics at the Justice Department by naming as Attorney General
Edward H. Levi, the dean of the University of Chicago Law School. When, the
following year, William O. Douglas left the Supreme Court, Levi pushed for
Stevens, his fellow-Chicagoan, whose anti-corruption credentials looked
especially desirable in that post-Watergate moment. “Ford’s purpose was not to
make a big splash and change the world,” Jack Balkin, a professor at Yale Law
School, said. “Ford was still smarting after the pardon of Nixon. He wanted to
unite the country. There was no attempt to nominate a strong ideologue. That
just wasn’t on the table. They wanted a straight-arrow, middle-of-the-road,
normal guy, excellent lawyer—and that’s what they got in Stevens.” Ford
nominated Stevens, who was then fifty-five, on November 28, 1975, and the Senate
confirmed him just nineteen days later, by a vote of ninety-eight to zero.
Stevens’s corruption investigation had a profound effect on the kind of judge he
became. One of the justices on the Illinois Supreme Court had written a draft
dissenting opinion in the case in which his colleagues were paid off but at the
last minute had decided to remain silent. (Dissents were rare in Illinois.) “If
there is disagreement within an appellate court about how a case should be
resolved, I firmly believe that the law will be best served by an open
disclosure of that fact, not only to the litigants and their lawyers, but to the
public as well,” Stevens wrote in the introduction to “Illinois Justice,” a 2001
book about the scandal. As a result, “I do clutter up the U.S. Reports with more
separate writing than most lawyers have either time or inclination to read.”
This is true. Especially in his early years, Stevens wrote a lot of opinions,
including many short dissents and concurrences. The point of all this writing
has not always been clear—he’s not warning of corruption among his
colleagues—and initially the number of opinions gave Stevens a reputation for
eccentricity. “His early concurrences did not move the ball—they were personal
statements,” Mikva said. “They were not stirring, Brandeis-type dissents. It
used up a lot of his time.” (Also in his first few years in Washington, Stevens
divorced and remarried. His second wife, Maryan Mulholland Simon, an old friend
from Chicago, is a dietician, whose ministrations Stevens credits for his
longevity.)
At first, Stevens settled into the ideological center of the Court, which at the
time was bounded, on the left, by William Brennan and Thurgood Marshall, and, on
the right, by Rehnquist, then an Associate Justice, and Chief Justice Warren E.
Burger. The turning point came in 1994, when Blackmun retired and Stevens became
the senior Associate Justice on the Court. Then, as now, the Court was closely
divided between liberals and conservatives, so both sides had at least a chance
of cobbling together majorities in important cases. This part of the job
requires political deftness, which Stevens, in his Lone Ranger mode, had not
often displayed. But he flourished in the role.
“Stevens controlled the assignment of opinions with great skill,” Walter
Dellinger said. “Sometimes he has assigned the opinions to himself, but more
important are the cases in which he gave up the privilege of writing the opinion
in landmark cases in order to secure a shaky majority.” In 2003, Stevens asked
O’Connor to write the opinion in Grutter v. Bollinger, the University of
Michigan Law School case. The same year, Stevens bestowed on Kennedy the
opportunity to write Lawrence v. Texas, the epochal gay-rights case invalidating
bans on consensual sex between adults of the same gender.
Decisions like Lawrence, as well as abortion-rights cases, which are based on
what are known as “unenumerated rights” in the Constitution, have long drawn the
ire of conservatives. “It’s in recent years that Stevens has most become an
activist judge, on issues like homosexual rights,” Bork told me. “He finds
rights in the Constitution that no plausible reading could find there.”
But such cases also raised his standing with liberals. “It was particularly
selfless for Stevens to assign Lawrence to Kennedy,” Dellinger said. “He could
have chosen the honor of writing Lawrence for himself. But it seems he wanted to
make sure that the tentative vote to strike down the Texas law held up, and
assigning the opinion of the Court to Kennedy locked in the majority.”
Still, the summit of Stevens’s achievements on the bench came during the Bush
Administration, in the series of decisions about the detention of prisoners at
Guantánamo Bay, and he kept for himself the most important of these opinions. In
the 2004 case of Rasul v. Bush, among the first major cases to arise from Bush’s
war on terror—and the first time that a President ever lost a major
civil-liberties case in the Supreme Court during wartime—Stevens wrote for a
six-to-three majority that the detainees did have the right to challenge their
incarceration in American courts. In his opinion, which was written in an
especially understated tone, in notable contrast to the bombastic rhetoric that
accompanied the war on terror, he cited Rutledge’s dissent in the Ahrens
case—which he himself had helped write, fifty-six years earlier. One of
Stevens’s law clerks, Joseph T. Thai, later wrote an article in the Virginia Law
Review entitled “The Law Clerk Who Wrote Rasul v. Bush,” which concluded that
“Stevens’s work on Ahrens as a law clerk exerted a remarkable influence over the
Rasul decision.”
Two years after Rasul, Stevens wrote the opinion for the Court in Hamdan v.
Rumsfeld, in which a five-to-three majority rejected the Bush Administration’s
plans for military tribunals at Guantánamo, on the ground that they would
violate both the Uniform Code of Military Justice and the Geneva conventions.
(Roberts did not participate in that case, because as a judge on the D.C.
Circuit he had joined the opinion that Stevens overruled.)
Stevens’s repudiation of the Bush Administration’s legal approach to the war on
terror was total. First, in Rasul, he opened the door to American courtrooms for
the detainees; then, in Hamdan, he rejected the procedures that the Bush
Administration had drawn up in response to Rasul; finally, in 2008, in
Boumediene v. Bush, Stevens assigned Kennedy to write the opinion vetoing the
system that Congress had devised in response to Hamdan.
After the attacks of September 11, 2001, the Bush Administration conducted its
war on terror with almost no formal resistance from other parts of the
government, until Stevens’s opinions. He was among the first voices, and
certainly the most important one, to announce, as he wrote in Hamdan, that “the
Executive is bound to comply with the Rule of Law.”
“The Second World War was the defining experience of his life, and he is proud
of being a veteran,” Cliff Sloan, a Washington lawyer who clerked for Stevens in
the mid-eighties, said. “No one can challenge his patriotism, and that’s why he
was the right guy to take on the Bush Administration’s position at that time and
in that way.”
Stevens, throughout his years on the Court, has drawn not just on history and
precedent but on contemporary values and even on his own experience as a judge.
According to Stevens, that approach has its origins in his brief stint as a
lawyer on the staff of the House Judiciary Committee. “That was probably one of
the most important parts of my education,” Stevens told me. He recalled an
incident involving an antitrust law: “I remember explaining one of the tricky
problems in the statute to one of the members of the committee. I got all
through it, and he said, ‘Well, you know, let’s let the judges figure that one
out.’ ”
What that told him was that “the legislature really works with the
judges—contrary to the suggestion that the statute is a statute all by itself,”
Stevens said. “There is an understanding that there are areas of interpretation
that are going to have to be filled in later on, and the legislators rely on
that. It’s part of the whole process. And you realize that they’re not totally
separate branches of government—they’re working together.”
Andrew Siegel, a Stevens clerk and now a law professor at Seattle University,
said, “Stevens believes that constitutional decision-making is conducted through
the interpretation of a mix of various sources—a complex balancing act.” He
added, “The glue holding it all together is judicial judgment.”
This is the core of Stevens’s disagreement with his great intellectual adversary
on the court, Antonin Scalia. When it comes to interpreting statutes, Scalia
believes that the Court should be guided by the words of the law “all by
itself,” as Stevens put it. Steven G. Calabresi, a law professor at Northwestern
and a co-founder of the conservative Federalist Society, told me, “What makes
Stevens a moderate liberal is that he is fundamentally a legal realist, which
means that when the text and history of the Constitution point in one direction,
and good results and good consequences point in the other, he’ll usually go with
what he sees as the good results.” He added, “Scalia sees the role of the judge
as to read the text and apply it—period. Stevens thinks the law is more of a
living thing, and he takes text and history and applies it in a way that he
thinks serves the purposes of the framers, not necessarily their exact words.“
Just about every year, Stevens and Scalia take each other on in one or more
cases. These contests reflect the temperaments of the two men—Stevens’s cautious
balancings against Scalia’s caustic certainties. One dramatic example came in
2008, in Baze v. Rees, which asked whether execution by lethal injection
amounted to cruel and unusual punishment, in violation of the Eighth Amendment.
Stevens and Scalia were both part of the seven-member majority, which said that
lethal injections were permissible, but wrote separate concurring opinions.
Stevens’s showed how his experience on the Court had soured him on the death
penalty. “State-sanctioned killing is . . . becoming more and more
anachronistic,” he wrote, and he proceeded to show that all of the purported
justifications for the death penalty—deterrence, retribution—failed in practice.
“I have relied on my own experience in reaching the conclusion that the
imposition of the death penalty ‘represents the pointless and needless
extinction of life with only marginal contributions to any discernible social or
public purposes.’ ” Still, he felt bound by the precedents of the Court to
uphold lethal injections.
Scalia wrote as a “needed response to Justice Stevens’s separate opinion.” He
criticized Stevens’s assertions about the death penalty, but it was Stevens’s
invocation of his own “experience” that really outraged Scalia. “Purer
expression cannot be found of the principle of rule by judicial fiat. In the
face of Justice Stevens’s experience, the experience of all others is, it
appears, of little consequence,” Scalia wrote, adding, “It is Justice Stevens’s
experience that reigns over all.”
Scalia’s mockery gets to the heart of his critique of Stevens’s
jurisprudence—that his variability simply amounts to a judge’s whim. “That
flexibility and malleability that Stevens talks about is really just a license
for a judge to reach any result he wants,” M. Edward Whelan III, a former Scalia
clerk who runs the conservative Ethics and Public Policy Center, said. “Scalia
believes in rules.” According to Calabresi, “Stevens gives judges too much
freewheeling power, and that’s not the way our system was supposed to work and
not the way it works the best.”
True to form, Stevens dismisses doctrinaire originalism, but says that
historical evidence does have its uses. “The original intent cannot be the final
answer—the world changes,” Stevens told me. “But I think it’s always a part of
your job to take a look at what you can find out about the original drafting and
all the rest of it.” In Heller, the gun-control case, Scalia invoked his view of
original intent to find that the Second Amendment gave individuals a personal
right to possess weapons. In his dissent, Stevens looked exhaustively at the
same historical evidence and reached an opposite conclusion: that the authors of
the Second Amendment intended to create no such right. “I’ve written a lot of
opinions in which I’ve looked at the history pretty carefully,” he said. For
Stevens, then, original intent is one factor—but only one—that should tell a
Justice what the Constitution means.
On September 29, 2005, Stevens administered the oath of office to Roberts in a
ceremony at the White House. “I didn’t think that ceremony should have been at
the White House,” Stevens told me. “I feel very strongly about that. I think the
proper place for that ceremony is at the Court. It has great symbolic
importance. After a nominee has been confirmed, he’s a member of the
judiciary—he’s not primarily the person who was selected by the President for
the Court.” Still, Stevens went ahead with the ceremony, because “I think he was
a particularly fine appointment, and I didn’t want anyone to get the
misimpression that I didn’t approve of him.”
During Roberts’s tenure, though, Stevens’s view of the Constitution—holistic,
gradualist, inclusive, broadly sourced—has most often been on display in dissent
in important cases. The replacement of Rehnquist and O’Connor by Roberts and
Alito made not only a more conservative Court but also a more aggressive one,
with far less regard for precedent. This is evident in areas from abortion law
(where the Court upheld for the first time a total ban on a specific medical
procedure) to antitrust (where the majority overturned a ninety-six-year-old
line of cases). William Rehnquist was no liberal, but he did not lead an attack
on the Court’s past.
Stevens believes that even the 1954 landmark, Brown v. Board of Education, which
struck down the doctrine of “separate but equal” in education, is under assault.
In 2007, when the Court, in an opinion by Roberts, struck down the Seattle
school-integration plan, Stevens, in dissent, could only murmur in wonder: “It
is my firm conviction that no Member of the Court that I joined in 1975 would
have agreed with today’s decision.”
Even Stevens’s manners at oral argument are not entirely the result of
Midwestern politeness. “You want to be sure to get it in,” he said. “The bench
is a little more active than it was years ago. You’ve got four or five Justices
who are very active.” Is that a good thing? “I’m not a Clarence Thomas, but I
think a little more permission to the lawyers to develop their own argument
would be better than the way it does develop.”
How long will Stevens remain on the Court? Good genes (one of his older brothers
practiced law until he was ninety-one), a happy home, plenty of exercise, and
even more luck could allow Stevens to keep up the fight into his tenth decade.
Last December, he had lunch with Peter Isakoff, a Washington lawyer who was one
of his early Supreme Court law clerks. “He had just played tennis that
morning—singles!—and I was just kind of amazed,” Isakoff recalled. “And so I
asked him, ‘Do you still run?’ And he looked at me and said, ‘Well, how else are
you going to get to the ball?’ ”
With the election of Barack Obama, the question of Stevens’s retirement has
become more pressing. Even though Stevens was appointed by a Republican
President, many assume that he would never willingly have turned his seat over
to George W. Bush. I asked Stevens about his plans.
“Well, I still have my options open,” he said. “When I decided to just hire one
clerk, three of my four clerks last year said they’d work for me next year if I
wanted them to. So I have my options still. And then I’ll have to decide soon.”
On March 8th, he told me that he would make up his mind in about a month.
Stevens needs a little more than two years to surpass Douglas for the longest
tenure on the Court, and about one year to equal Oliver Wendell Holmes as the
oldest serving Justice, but he said that those numbers were irrelevant. “I’ve
never felt any interest in trying to break any records,” he said. He has had a
closeup view of the complexities of retirement decisions for Supreme Court
Justices. William Douglas, whom Stevens replaced, stayed on the Court after a
series of strokes that incapacitated him; his colleagues awkwardly forced his
resignation. On the other hand, O’Connor left the Court in good health, which
continues, and has watched her successor, Alito, undo part of her legacy.
Did it matter which President named his replacement?
“I’d rather not answer that,” Stevens said. The Republican Party may have moved
right since 1975, but Ford himself never displayed anything but pride in his
choice of Stevens for the Court. In 2005, a year before his death, Ford wrote,
in a tribute to Stevens, “For I am prepared to allow history’s judgment of my
term in office to rest (if necessary, exclusively) on my nomination thirty years
ago of John Paul Stevens to the U.S. Supreme Court.”
As for Obama, Stevens said, “I have a great admiration for him, and certainly
think he’s capable of picking successfully, you know, doing a good job of
filling vacancies.” He added, “You can say I will retire within the next three
years. I’m sure of that.”
He will not be seen again, under any circumstances, at a State of the Union
address. “I went to a few of them when I was first on the Court, but I stopped,”
Stevens told me. “First, they are political occasions, where I don’t think our
attendance is required. But also it comes when I am on a break in Florida. To be
honest with you, I’d rather be in Florida than in Washington.” ♦