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 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. Stevens 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: Each year he would spend much of the winter in Florida, communicating with his clerks and the court through Federal Express. He could give full play in Florida to a sort of virile frontiersman's side that few knew he had: He was outstanding at golf, tennis, squash and bridge, and he flew his own plane.
Yet he was unfailingly polite and gracious to colleagues, clerks and advocates. He and Justice Antonin Scalia were the two killer questioners on the court then, but in contrast to Scalia's fiery and sometimes contemptuous style, Stevens was halting, even diffident, and many an advocate didn't realize until it was too late that his legs had been cut out from under him.
In the vast run of cases over the years, Stevens’s opinions were precise and coolheaded. His independent streak caused him — in rare but important instances — 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.
A memorable, fairly early instance came in 1984 in Pennhurst State School and Hospital v. Halderman. The court held 5-to-4 that Pennsylvania's sovereign immunity prevented the judiciary from remedying a horrendous string of abuses at a state hospital for the developmentally disabled. Stevens, the junior justice in the embryonic liberal wing of William Brennan, Thurgood Marshall, Harry Blackmun and himself, began his dissent, "This case has illuminated the character of an institution," proceeding to spell out the terrible practices at the hospital. He then provided a devastating takedown of the majority's slapdash approach to sovereign immunity. He ended the opinion with an elegant echo, this time referring to the court: "As I said at the outset, this case has illuminated the character of an institution."
Stevens’s 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 — as Stevens himself claimed — 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 Republican Party of 1975. (Notably, however, Stevens voted to strike down affirmative action measures in his first years on the court.)
Thus, 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's 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 was very much the liberal lion, filing 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, two years before his retirement, 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
Harry Litman, a Washington Post contributing columnist, is a former U.S. attorney and deputy assistant attorney general. He teaches constitutional law and national security law at the University of California at Los Angeles School of Law and the University of California at San Diego Department of Political Science.