After Stevens: What will the Supreme Court be like without its liberal leader?Professor Thomas H. Lee in The New Yorker, March 22, 2010
by Jeffrey Toobin
March 22, 2009
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.”
Contact: Thomas H. Lee