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Justice Stevens' independent streak

His is a legacy of leftward movement in response to the court's right turn.

Justice John Paul Stevens in 2003.

Justice John Paul Stevens in 2003. Photo Credit: The Washington Post/John McDonnell

John Paul Stevens was the last Supreme Court justice chosen in the halcyon days before confirmations became fiercely ideological affairs. President Gerald Ford was seeking an uncontroversial choice who would not impede his election efforts. Stevens, a Republican former Chicago antitrust lawyer and relatively unknown judge on the U.S. Court of Appeals for the 7th Circuit, fit the bill. He was confirmed 98-0 two weeks after his nomination.

When he took his seat, Stevens, who died Tuesday, appeared to fit comfortably as a center-right judge on a center-right court. But from the start, Stevens had a strong independent streak. That was the case as a matter of personal style. He did not form personal bonds with the other justices. He did not participate in the court’s cert pool, meant to reduce the burden of reviewing the thousands of petitions that come in each term. He was an early practitioner of working from home: He would spend much of the winter in Florida, communicating with his clerks and the court through Federal Express. Yet he was unfailingly polite and gracious to colleagues, clerks and advocates.

In the vast run of cases over the years, Stevens’ opinions were precise and coolheaded. His independent streak caused him to strike out at the court with slashing prose when he believed it had shirked its basic constitutional obligation. And bow tie, mild manner and big glasses notwithstanding, he could be a knockout boxer when he felt the situation called for it.

Stevens’ flashes of outrage more often than not were directed at an emerging, increasingly conservative right wing that pulled the court well off center in issues that Stevens cared deeply about, in particular matters of federal vs. state power and the establishment clause. So while the perennial debate with Stevens will be over whether the court moved right or he moved left, the correct answer is almost surely both. Certainly, the post-Reagan Republican Party views on abortion, affirmative action and states’ rights fell well to the right of the GOP of 1975.

By the late 1980s, Stevens had become a mainstay of a four-person liberal minority, though even then his vote was the least reliable of the four. Famously, for example, he dissented from the court’s opinion holding unconstitutional Texas’ ban on burning the flag; Stevens would have upheld the law.

By the time of the abhorrent opinion in Bush v. Gore, Stevens was the senior member of the liberal bloc, and the opinion he assigned to himself ended with one of the most scathing indictments of judicial abuse in the annals of Supreme Court opinions: “One thing, however, is certain. 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.”

In his later years on the court, Stevens filed memorable dissents to the court’s opinions in District of Columbia v. Heller and Citizens United v. Federal Election Commission, the latter which he wrote was “a rejection of the common sense of the American people” that “threatens to undermine the integrity of elected institutions across the nation.” And in 2008 he announced he had concluded that the death penalty was unconstitutional in all cases.

All in all, John Paul Stevens left a legacy of gradual movement leftward in response to the court’s sharp conservative turn. When Clarence Thomas proudly proclaims “I’m not evolving,” it is the record of Stevens among others that he is reacting to. Stevens, as so often, saw it differently: “Learning on the job is essential to the process of judging,” he said. His contributions to the court and the nation will be remembered by his embrace of that principle.

 Harry Litman, a former U.S. attorney and deputy assistant attorney general, wrote this for The Washington Post.

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