I am saddened to learn of the passing of Justice John Paul Stevens, even as he lived to the ripe old age of ninety-nine. Justice Stevens led a remarkable life. He served in the U.S. Navy’s Pacific theater during World War II as a code breaker, and he was awarded a Bronze Star. After his military service, he studied law at Northwestern Law School, where he graduated in 1947, and went on to clerk for Supreme Court Justice Wiley Rutledge the following year. He had an impressive early career in private practice and in the government. President Richard Nixon appointed Stevens to the United States Court of Appeals for the Seventh Circuit in 1970, and President Gerald Ford elevated Stevens to the Supreme Court in 1975, to replace William O. Douglas. Stevens served as Associate Justice until his retirement in 2010, when he was, in turn, replaced by Elana Kagan. Stevens was the second oldest serving Justice, and he held the third longest tenure on the Court.
I never met the Justice personally, but I have heard fine things about him from those who have. One friend, who knew him sufficiently well that I sent an email condolence, said that only Justice Stevens could make passing at his remarkable age seem premature. Although contrary to Bob Dylan, no one is forever young, Justice Stevens seemed forever sharp. Even in retirement, and despite his age, he remained active until the very end, including writing three books (the last with the wonderful subtitle: "Reflections on My First 94 Years"), and issuing a controversial NYT op-ed advocating the repeal of the Second Amendment.
Justice Stevens sometimes claimed that during his tenure, the Supreme Court had moved ideologically right, but that he had remained the same. That's half true. But rather than viewing his own change as a sign of weakness, I’m persuaded it’s a strength. I suspect Justice Stevens might have come at some of his very early opinions differently in his later judicial career. And in fairness, he also recognized this, for example, changing his view on the death penalty in later years after having once voted to reintroduce it.
I have always enjoyed teaching Justice Stevens’s opinions, especially the ones he wrote for himself. They were invariably incisive, getting to the jugular, especially when the majority and dissenting opinions got caught in the weeds. Stevens had clear vision, and he didn’t hesitate to call out others who he thought did not.
A few examples:
In Adarand v. Pena, the Supreme Court, with Justice O’Connor writing, insisted upon applying strict scrutiny, the most piercing test, to a race-conscious federal contracting scheme. Five years earlier, the Court had settled upon the more relaxed intermediate scrutiny test, which would likely have sustained the Adarand program. Justice O’Connor insisted that strict scrutiny was necessary to ensure that the challenged program was not intended to actually harm, rather than benefit, racial minorities. Justice Stevens would have none of it. His quick, direct response: One does not need strict scrutiny to see the difference between a welcome mat and a no trespass sign. In one line, Stevens got to the essence of a body of caselaw involving racial preferences and affirmative action. Whether one thinks that racial preferences are helpful or not as an empirical matter, Steven understood that their purpose was to help, not hinder, affected minorities.
In Allen v. Wright, the Supreme Court, again with Justice O’Connor writing, denied standing to a nation-wide group of parents seeking to strike down an IRS policy that afforded tax exempt status to private schools despite alleged racially discriminatory hiring and admissions policies. The minority children themselves had not applied for admission at the private schools, yet the parents claimed the IRS policy inhibited the integration of the public schools their children attended. Justice O’Connor rested on a complex causation formula to deny standing, thereby preventing the case from being resolved in federal court. Her analysis turned on the number of links in the causal chain between having the IRS policy struck down and any actual impact on the racial integration of the public schools the African American children attended. Once more, Justice Stevens wasn’t impressed, and his answer was simple: As a matter of elementary economics, if you make something cheaper, here discriminatory policies, more will be bought, whereas if you raise the price, less will be. Stevens recognized the scheme for what it was: subsidized white flight. Although the incidence and effect were empirical inquiries, he reasoned that these were the sorts of queries suitable for litigation.
In the 2007 decision, Parents Involved in Community Schools v. Seattle School District No. 1, Chief Justice Roberts, writing for a majority, disallowed states from voluntarily employing race as a modest tie breaking device to avoid a feared reversion to single race schools. In dissent, Justice Stevens claimed not a single member of the Court would have joined the majority opinion. He might well have been right, yet there’s little doubt that he too changed his jurisprudence in the intervening decades.
And in the much-criticized decision, Citizens United v. Federal Election Commission, Chief Justice Roberts, for a majority, determined that corporations are First Amendment persons, and thus protected in their direct corporate expenditures. Justice Stevens, writing in dissent, recognized that the case didn’t pit corporations against flesh and blood persons so much as against each other. Under the ruling, firms might feel compelled to spend moneys in ways that were successfully disallowed to as a means of currying political favor, a problem that had been resolved in the now-invalidated regime treating corporations, creatures of the state, for what they actually are, merely legal, and not actual, persons.
In his own controversial majority decision, Kelo v. City of New London, Justice Stevens allowed New London to exercise eminent domain as part of a development scheme for Pfizer Corp. to produce Viagra. Critics thought the opinion less uplifting, and they regarded it an example of extreme judicial overreach. I have elsewhere defended the decision, which I believe has been mischaracterized as siding with big firm against small homeowner. The case risked having a hold-out homeowner hold out too long, with the effect of transforming the dynamics into a game of chicken. If a hold-out ends up stuck with a single purchaser once the scheme is locked in, the buyer no longer has an incentive to pay even fair market value. Ultimately the planned development failed, but cases cannot be evaluated base on the fortuity of subsequent factual developments. If the Kelo decision warrants criticism, it isn’t for choosing the corporation over the individual; it is for paternalistic protection of future Mrs. Kelos who risk depleting the value of a major financial asset.
When retired Justice Stevens published his op-ed advocating repealing the Second Amendment. I feared, ironically, that doing so risked providing ammunition to Second Amendment enthusiasts who claimed those on the left are seeking to take away their guns. Of course, the real problem isn’t that the Constitution has a Second Amendment; it is that Heller fundamentally distorted its meaning, as Stevens so forcefully pointed out in that case's dissenting opinion.
I imagine that in retirement, as he looked at the world around him, Justice Stevens was struck by how rapidly it seemed to be changing for the worse. The direction of the Court is a small piece of a larger puzzle, namely the descent of this once great nation toward the worst elements of nationalistic divisiveness. As I think about Justice Stevens, I am reminded also of my parents, who were about a decade younger and who passed away a few years earlier. They missed the Trump era. Unfortunately for Justice Stevens, he did not. Justice Ruth Bader Ginsburg weighed in on Trump the candidate who had criticized her, and that did not go well. Being a jurist must be hard. You are simultaneously given a platform while on the bench, with professionals pouring over your every word, but then you are criticized if you have something important to say that forces you outside that role. So be it. It’s certainly not my place to advise renown jurists as to when they should or should not vent.
I used to joke when teaching Justice Stevens's opinions by asking “why did Justice Stevens write separately other than the fact that he always writes separately?” I already miss his independent spirit and profound sense of clarity.
I welcome your comments.