John Paul Stevens and the American Century

Below is an essay for our thirty-day series on Justice Stevens, by Diane Marie Amann, a law professor at the University of California, Davis, School of Law and director of the California International Law Center at King Hall there.  In the 1988 Supreme Court Term, she clerked for Justice Stevens, and she is working on Justice and John Paul Stevens, a biographical study of his jurisprudence of liberty, equality, and security.  Amann’s publications on Justice Stevens include “John Paul Stevens, Human Rights Judge,” Fordham Law Review (2006) and “John Paul Stevens and Equally Impartial Government,” University of California Davis Law Review (2010).

For years after John Paul Stevens arrived in Washington, Court-watchers across the ideological spectrum typecast him as a “wild card” whose fact-conscious approach led to “maverick” results. Those terms seldom surface any more; accounts of his recent decision to step down at the end of this Term instead dubbed him a “lion,” a “leader of the liberal wing.”  Yet neither description alone does justice to Justice Stevens, who today celebrates his ninetieth birthday.  In his jurisprudence may be found not only a commitment to common law processes, but also a vision of how law must serve American ideals.

John Paul Stevens has lived much of what has been called the American Century.  He was born in Chicago on this day in 1920.  Just five months earlier, the Senate had voted to keep the United States out of the post-World War I League of Nations.  Four months before that, deadly race riots had roiled neighborhoods not far from Stevens’ Hyde Park home.  His family was among the city’s most prominent, having earned a fortune in the life insurance business.  In 1927 the family opened the lakefront Stevens Hotel, then the world’s largest, run by John’s father, already manager of another posh downtown hotel.  John’s Jazz Age childhood soon gave way to Depression-era tragedy: Stevens’ father, who had borrowed money from the insurance company in an attempt to save the hotel, was convicted in 1933 of embezzlement.  The Illinois Supreme Court fully exonerated him in 1934.  But the hotel was lost, and the father ran a food concession at the Century of Progress World’s Fair.  John had his first job selling Banbury tarts near the Fair’s replica Globe Theatre.  There began his love of Shakespeare’s plays.

As a University of Chicago undergraduate, John heard Mortimer Adler and Robert Maynard Hutchins – renowned as founders of the Great Books curriculum – debate whether America should come to the aid of England in its fight against fascism in Europe.  When war came Stevens served, earning a Bronze Star for his work as a Navy codebreaker at Pearl Harbor.  At war’s end he returned to Chicago.  Having excelled at Northwestern University School of Law, Stevens was hired by Justice Wiley B. Rutledge, Jr., later described as the conscience of a Supreme Court sorely tested by World War II and the ensuing Cold War.  As Rutledge’s law clerk Stevens played his part in America’s mid-twentieth century struggles to resolve competing claims of national security and individual dignity, and to enforce the Constitution’s guarantees of liberty and equality.

Stevens spent most of the nearly three decades between that clerkship and his own confirmation in Chicago, where he taught antitrust part-time and established himself as one of the city’s premier litigators.  (Stevens is quick to note that his stints in Washington, working on congressional antitrust inquiries, taught him how legislation is made, a lesson that has influenced his approach to statutory interpretation.)  His work as special counsel in a corruption investigation that prompted the resignation of Justices of the Illinois Supreme Court – chronicled in Kenneth Manaster’s Illinois Justice (2001) – led to Stevens’ appointment to the Seventh Circuit in 1970.  Five years later, he became the only Justice nominated by post-Watergate President Gerald Ford.

As commentators soon noted, Stevens brought to the Court the litigator’s focus on the case at hand.  That focus has remained evident not only in the Justice’s penchant for attending to factual wrinkles that sometimes lead to unexpected results, but also in his insistence that the Court should decide only the issues squarely presented in briefs and oral argument.

Less noted was the intellectual framework that Stevens brought with him to Washington.  During his tenure he, like Rutledge and all members of the Court, has grappled with the important issues of this last century:  issues of liberty, equality, and security.  Underpinning many such decisions has been a vision of the relation between the individual and the state that Stevens explicitly has linked to the work of Mortimer Adler and John Stuart Mill.  In a lecture published as The Third Branch of Liberty, 41 University of Miami Law Review 277 (1986), Stevens construed the “liberty” of the Due Process Clauses to protect every individual from “being treated less favorably than the average member of society unless there is an acceptable justification for such treatment.”  He then gave two examples of unjustified invasions of liberty:  when a “person is branded as a ‘felon’” without proper hearing, and when “he is treated less favorably than the majority of his peers simply because his skin is not of the same color as theirs.’”  Stevens thus maintains, as did the Court in Bolling v. Sharpe (1954), that the Constitution’s guarantee of fundamental fairness encompasses a principle of equality dating to the Declaration of Independence.  That view of the Constitution not only has influenced Stevens, but also may be discerned in recent writings of other Justices; most notably, those of Justice Anthony M. Kennedy in cases like Lawrence v. Texas (2003).

This vision, along with his clerkship for Justice Rutledge and other life experiences, influenced Justice Stevens’ jurisprudence on myriad issues.  To cite a few instances:

— Capital Punishment.  Soon after joining the Court, Stevens drafted the opinion in Woodson v. North Carolina (1976), which made clear that the Eighth Amendment forbids mandatory imposition of the death penalty. But he also cast the essential vote in companion judgments, like Gregg v. Georgia, by which the Court ended a four-year de facto moratorium and reinstated capital punishment. Even then, his wartime experience had sown seeds of doubt about the death penalty, and he confronted his vote in Gregg throughout his career on the Court.  He has drawn an ever smaller circle around the types of cases that are death-eligible.  Noteworthy is his opinion for the Court in Atkins v. Virginia (2002), which reversed a thirteen-year-old precedent to outlaw the execution of mentally retarded persons, and set the stage for the abolition three years later of the juvenile death penalty.  Culminating this jurisprudence is Stevens’ separate opinion in Baze v. Rees (2008), in which he wrote that judicial experience compelled him to conclude that the capital punishment is not susceptible to constitutional application, and then explained that since his view did not command a majority, he would continue to evaluate every death case according to precedent.

— Equal Protection.  Justice Stevens initially evinced hostility toward government programs said to give preference to minorities as a means to remedy past discrimination; indeed, in Fullilove v. Klutznick (1980), he likened one such program to the Nuremberg Laws by which Nazi Germany persecuted its Jewish citizens.  In contrast stands a 1948 memorandum, written fully six years before the Court’s landmark decision in Brown v. Board of Education (1954), in which clerk Stevens advised Justice Rutledge to “take judicial notice of the fact that … the doctrine of segregation is itself a violation of the Constitutional requirement.”  About midway through his tenure on the Court, Stevens came to approve affirmative action programs that, rather than dwelling on past discrimination, looked forward to the promotion of diversity in American society.  Wresting from the majority its claim to the mantle of Brown, Stevens declared in 2007 that the integration plans at issue in Parents Involved in Community Schools v. Seattle School District No. 1 served “the public interest in educating children for the future,” adding that “children of all races benefit from integrated classrooms and playgrounds.”

— National Security.  An undisputed landmark in Stevens’ career is his forging of coalitions that crossed the conventional liberal-conservative divide to reject key aspects of the President’s post-9/11 campaign against terrorism.  Stevens wrote two of the most important judgments, Rasul v. Bush (2004), which granted federal habeas privileges to noncitizen  terrorism suspects held offshore at Guantánamo, and Hamdan v. Rumsfeld (2006), which invalidated military commissions established by a decree of President George W. Bush.  Those judgments restraining executive power stood in some tension with some of Stevens’ earlier decisions  respecting the extraterritorial reach of law enforcement.  The post-9/11 jurisprudence hearkens to opinions in which Rutledge – in one case, an opinion that clerk Stevens helped draft – stressed the Court’s duty to ensure fair treatment for even the most disfavored persons, even when national security rests in the balance.  For Stevens as for Rutledge, no less than America’s tradition was at stake.  “[I]f this Nation is to remain true to the ideals symbolized by its flag,” Stevens wrote in dissent from one post-9/11 judgment, “it must not wield the tools of tyrants even to resist an assault by the forces of tyranny.”

On this his ninetieth birthday, our country celebrates Justice John Paul Stevens’ invaluable service to the American Century.