How John Paul Stevens Surprised Us

How John Paul Stevens Surprised Us

Stevens was precisely the kind of justice that neither side wants appointed: a pragmatist, skeptical of rigid doctrinal tests.


John Paul Stevens, who died last week in Florida at the age of 99, was the kind of Supreme Court justice we are increasingly unlikely to see: a Republican who voted often to support liberal understandings of constitutional rights.

Appointed by President Gerald Ford, Stevens wrote the Court’s opinions holding that Guantánamo detainees were entitled to challenge their detention in federal courts, and that the president could not try Al Qaeda suspects in military commissions without congressional authorization. He voted to uphold affirmative action, to protect the jury-trial rights of criminal defendants, to safeguard women’s reproductive freedom, to enforce the separation of church and state, and to recognize the rights of gay and lesbian couples to marry on the same terms as opposite-sex couples. He dissented from decisions recognizing the right to bear arms, protecting corporations from campaign finance regulations, and halting the Florida vote recount in 2000, thereby handing the disputed election to George W. Bush.

It wasn’t always this way. Stevens was a World War II veteran and a corporate lawyer before becoming a judge. In his early years as a justice, he voted to revive the death penalty after the Supreme Court had temporarily halted its implementation, and voted to invalidate affirmative action programs in higher education and government contracting. He voted against First Amendment protection for flag burning, and, as late as 2010, voted to uphold a federal law that makes it a crime to advocate for peace and human rights on behalf of designated “foreign terrorist organizations.” (I represented the flag burners and the peace and human rights advocates in these cases.)

Stevens resisted pigeonholing. He was a pragmatist. In part, this reflected his humility; he did not insist that he had access to some overarching theory that provided the correct answer, as some of his colleagues did. He was more interested in the practical application of reason to the problem at hand—more attuned to the human dilemmas presented than to any particular ideology or theory. As one of his clerks, David Pozen, now a Columbia law professor, put it:

Because Justice Stevens never committed to any distinct brand of jurisprudence or theory of the judicial role, his place in history will have to rest on an evaluation of how he applied his judgment in scores upon scores of individual cases—whether he did so fairly and wisely, or unsatisfyingly and imprudently, whether his decisions advanced or arrested the cause of legality, liberty, and justice. He wouldn’t have it any other way.

This is of course precisely the kind of justice that no side wants appointed these days. Republicans and Democrats alike prefer reliable votes for their policy preferences over careful arbiters who will seek to do justice without regard to political allegiance. Thus, many Republicans lament the appointments of Justices Anthony Kennedy, Sandra Day O’Connor, Harry Blackmun, David Souter, as well as Stevens, because they were not predictable votes for conservative causes. Donald Trump has called even Chief Justice John Roberts, a deeply conservative jurist, “a nightmare for conservatives” because he voted to uphold Obamacare.

Stevens’s commitment was not to a particular worldview but to the act of judging, which requires fierce independence, an open mind, and the willingness to do the right thing regardless of whether it is popular. He was skeptical of rigid doctrinal tests; he criticized the Court’s equal protection doctrine, for example, which applies different levels of review to laws discriminating on the basis of race, sex, and other classifications, respectively. In his view, there was only one Equal Protection Clause, and he didn’t think that differing tests were very helpful in deciding cases. He trusted his own ability to render judgment over a rigid rule.

Sometimes this hostility to rules led him astray. In the flag-burning cases, for example, he appears to have let his experience as a veteran overcome what Justice William Brennan, writing for the majority, called the First Amendment’s “bedrock principle”: that “the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” At oral argument, Stevens was visibly disturbed by the notion that the First Amendment protects those who would burn the flag. His opinion invoked Patrick Henry, Susan B. Anthony, and “the soldiers who scaled the bluffs at Omaha Beach,” and concluded that if America’s ideas of liberty and equality “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 from unnecessary desecration.”

But Stevens reserved his most passionate dissent for Bush v. Gore, contending that the Court’s majority had intervened inappropriately in effectively deciding the election of 2000. As he put it, “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 the impartial guardian of the rule of law.”

Perhaps above all, Stevens will be remembered for his deeply felt decency toward others. One story from oral argument captures this as well as any other. As told by Chris Eisgruber, a former Stevens clerk who is now president of Princeton:

A nervous lawyer was stumbling through an argument, and several times addressed members of the Court as “Judge.” The Chief Justice became more irritated each time that title was used, and finally interrupted the lawyer. “Counselor,” the Chief Justice intoned, “the members of this Court are Justices, not Judges, and you should address them accordingly.” The lawyer was mortified by this criticism, and began a long, hand-wringing apology. Justice John Paul Stevens leaned forward in his chair, and said, “Don’t feel badly, counselor. The Constitution makes the same mistake.”


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