Below is my column in the Washington Post Sunday on the legacy of Supreme Court Justice John Paul Stevens. With roughly 35 years on the bench, he was the nation’s second oldest and third-longest serving justice.
Stevens will lie in repose at the Supreme Court on Monday. On Tuesday his funeral will be held and he will be buried at Arlington National Cemetery. I expect he would have preferred center field at Wrigley but this is a strong second option.
Here is the column:
After 35 years on the court, John Paul Stevens remained one of the most difficult justices to interview. Stevens was old school, and tended to avoid public speeches and discussions of his legacy. In 2010, as rumors of his retirement were spreading, I tried every angle to land an appointment. I phoned his office and invoked the fact that we were both Chicago natives who attended the University of Chicago and Northwestern. No dice. We were both die-hard Cubs fans. Nope. I finally resorted to the lowest possible approach. When I saw Stevens at a legal gathering, I told him that I doubted that Babe Ruth really “called the shot” before his famous home run, into the bleachers, off Cubs pitcher Charlie Root in the fifth inning of Game 3 of the 1932 World Series. Stevens pounced, describing what he’d seen from the stands as if it were still Oct. 1, 1932, and he was that 12-year-old kid with his dad at Wrigley.
While some claim that the Babe might not have actually been pointing but was just swinging his bat, Stevens insisted that he “was pumping the bat” at his intended destination. I immediately relented, of course, and then asked, “Okay, now how about your retirement?”
I can’t say I got anything earthshaking out of that brief conversation, but my desperate bait-and-switch was not entirely random. Stevens, as I’ve written before, was the “uncalled shot” of the Supreme Court. Entering the court as a conservative appointed by President Gerald Ford, Stevens would finish his tenure as the indisputable leader of the liberal wing. He is an example of how a jurist can find not just his voice but his vision on the court.
While most Americans may not recognize Stevens’s name, he changed this country in fundamental ways with dozens of historic rulings. Those opinions were written in direct and unadorned language. He was also crafty. As the center of the court shifted to the right, Stevens repeatedly found ways to forge majorities or avoid review in critical cases.
Born into a wealthy Chicago family, Stevens was headed for an advanced degree in English before he took a detour into naval intelligence. He joined the Navy the day before Pearl Harbor was bombed and would receive the Bronze Star for his role in a code-breaking operation that led to the downing of the plane carrying the leader of that attack, Adm. Isoroku Yamamoto. When he returned to Chicago, he opted for law school and graduated with the highest average in the history of Northwestern University School of Law .
After a clerkship with Justice Wiley B. Rutledge Jr., he turned down an offer to teach at Yale and went into private practice, specializing in antitrust law. He investigated possible corruption in the Illinois court system, a complex enterprise that led to the resignation of two state Supreme Court justices. After Watergate, Ford wanted to appoint someone to the court with impeccable ethics and unimpeachable standing in the legal profession. He chose Stevens, who succeeded the liberal stalwart William O. Douglas.
Stevens left a legacy that transcends those of all but a handful of justices, and his shift from the right to the left of the court is one of the most striking in the institution’s history. He would come to regret some of his earlier votes, such as one reinstating the death penalty (in Gregg v. Georgia, in 1976). In 1978, Stevens wrote a strong dissent against affirmative action in University of California Regents v. Bakke . Yet he would finish on the court as one of the great supporters of the practice, upholding race as a criterion in university admissions in a series of cases. He would also emerge as one of the most consistent and strongest voices supporting abortion rights, gay rights and women’s rights.
His most consequential decision may have been in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. (1984). There, Stevens laid out the standard for the review of agency decision-making, an opinion that would create great deference to administrative decisions. Stevens held that, when a statute is ambiguous and an agency acts, the only question courts must resolve is “whether the agency’s answer is based on a permissible construction of the statute” – a standard that largely insulates agency decisions from challenge. Chevron greatly magnified the role of agencies in U.S. governance and remains among the most-discussed court rulings.
His voice on the court became more distinctive and powerful as time went on – and this was particularly true after such towering figures as Thurgood Marshall and William Brennan left the court.
The style as well as the content of Stevens’s opinions evolved: His early decisions tended to be not just more conservative but also shorter and somewhat underdeveloped, in the vein of his appellate decisions. Years ago, Stevens and I flew to Milwaukee to speak at a judicial conference. He mentioned that he probably wouldn’t be able to attend my speech (which was frankly a bit of a relief since I was speaking about the Supreme Court). During the discussion, a judge asked about my proposal to expand the court and whether I would also support term limits for justices or mandatory retirement ages. I answered no, and said I could explain why in three words: John Paul Stevens. I said that Stevens’s early opinions were sometimes incomprehensible or incomplete, while his later opinions were profound and transformative. That is when I spotted Stevens. He later approached me with his signature grin and said, “Incomprehensible?”
The fact is that Stevens came into his own on the court. I disagree with some of his decisions – particularly one supporting sweeping eminent-domain powers ( Kelo v. City of New London , 2005). Yet he always wrote not out of hardened ideology but an innate sense of fairness, equality and inclusion.
He would truly emerge as a leading voice on the jurisprudential left a decade into his tenure. In his dissent to Bowers v. Hardwick (1986), Stevens vehemently disagreed with the upholding of a Georgia statute criminalizing sodomy between consenting adults. It was one of the worst decisions in the history of the high court, and Stevens denounced the analysis. His views would later prevail in the landmark Lawrence v. Texas (2003), which struck down anti-sodomy laws.
Stevens authored one of the most powerful defenses of the First Amendment in Reno v. ACLU (1997), writing the opinion striking down the criminalization of “indecent transmission” of “obscene or indecent” messages under the Communications Decency Act of 1996. The vagueness of the law was clearly incompatible with the guarantees of the First Amendment, and Stevens held that the law “threaten[ed] to torch a large segment of the Internet community.”
Stevens was also a critic of expansive interpretations of the Second Amendment. He wrote a stinging dissent to the decision in District of Columbia v. Heller (2008), which recognized, for the first time in U.S. history, an individual right to bear arms. He wrote a comprehensive account of the origins of the amendment and argued: “The Court would have us believe that over 200 years ago, the Framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons, and to authorize this Court to use the common-law process of case-by-case judicial lawmaking to define the contours of acceptable gun control policy. Absent compelling evidence that is nowhere to be found in the Court’s opinion, I could not possibly conclude that the Framers made such a choice.”
Despite sharp disagreements, Stevens rarely used the kind of hyperbolic or dramatic language that characterized the opinions of some of his colleagues. But he was both direct and forceful in his dissent to the decision to stop the recount in Florida in the 2000 presidential election. In Bush v. Gore , Stevens warned that the court had crossed a dangerous line, putting its own legitimacy at risk. He expressed hope that “time will one day heal the wound . . . inflicted by today’s decision,” adding: “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.”
Likewise, Stevens was ardent, in 2010, in dissenting from Citizens United v. Federal Election Commission , which struck down limits on political contributions by corporations as an unconstitutional denial of free speech. “While American democracy is imperfect,” he wrote, “few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.”
Such opinions are like the man himself: impassioned yet direct; honest and unpretentious.
When I received the first call informing me of Stevens’s death, I was watching our Cubs play the Cincinnati Reds. I left the game on as I started to write about his exemplary life and work. The Cubs won in extra innings, with Kyle Schwarber hitting a long ball at Wrigley into the bleachers, the same area where Babe Ruth once made history in front of an awed 12-year-old named John Paul Stevens. Schwarber’s home run was no “called shot.” But some great players, like great justices, just make the play, without the fanfare or the theatrics.
is the Shapiro professor of public interest law at George Washington University.