Interview with Bill Barnhart, part II

As part of our continuing series on John Paul Stevens, Steve Sanders, an associate in the appellate and Supreme Court practice group of Mayer Brown and an adjunct faculty member at the University of Michigan Law School, interviewed Chicago Tribune editor and writer Bill Barnhart about his new biography of Justice Stevens, John Paul Stevens: An Independent Life.

Below is the second half of that interview; the first half is here.

4. Justice Stevens seems to be an example from the era when the primary qualification for the Supreme Court was being a very fine lawyer, not (as some seem to expect today) having written or blogged or litigated on every important legal issue.  Still, it has long been expected that an appellate or Supreme Court jurist should have a “judicial philosophy”– a coherent methodology or explanation for how they approach the process of resolving legal questions.  Once he got on the bench, did Justice Stevens develop a judicial philosophy?

My reading of law review analyses of Justice Stevens’ tenure indicates that those who have tried to describe his judicial philosophy, if he has one, have not reached consensus, at least not one that’s comprehensible to a layman like me.

One of the tests of any assertion in this area is to ask, as opposed to what? Who represents a contrary philosophy? If the analyst can’t answer that question, it’s hard to see how he or she has distinguished Stevens’ judicial philosophy. The best example I know of is the claim that Justice Stevens is a great “common law” justice. That sounds good, until you ask, as opposed to what? Since I’ve never seen an answer to that question, with a convincing example from the historical roll call of the Court, I can’t be satisfied by the claim.

Another problem I have with fixing on a Stevens judicial philosophy applies to all Justices. You can always find significant contrary evidence in their opinions to whatever philosophy you posit. For example, Stevens probably would not be labeled a “textualist” or an “originalist,” short-hand terms of judicial philosophy often applied to Justice Scalia. Yet one of the Top 10 pronouncements by Stevens studied by law students is one found in one of his earliest opinions (Craig v. Boren (1976)):  “There is only one Equal Protection Clause. It required the state to govern impartially.” Stevens was objecting to the various tiers of judicial scrutiny under the Fourteenth Amendment that had come into vogue on the Court. Sounds like textualism and originalism to me.

I read a true philosopher of law, Ronald Dworkin to try to understand what “judicial philosophy” might mean. In Law’s Empire, Dworkin’s concept of a hero-judge strikes me as a spot-on description of Stevens, but as far as I know Dworkin has never said so.

I can’t compete with Dworkin or any other such scholar, but I did come up with  three terms that I believe capture Stevens’ work on the Court. Call them philosophy if you like. They are precision, restraint and pragmatism.

Precision: Stevens is a bottoms-up practitioner of appellate review. I’ve never had the pleasure of sitting in the black leather chair in his clerk’s room, where he goes over cases, but I suspect the routine begins with a discussion of the facts and law in the case that would defy anyone to detect Steven’s ultimate point of view. I find this characteristic especially appealing in a world where opinion has far outrun facts in many areas of life, especially politics and the news media.

Restraint: I cite Stevens’ opinions in just three unrelated cases over many years – Sprogis v. United Airlines (7th Cir. 1971); Regents of University of California v. Bakke (1977); and Citizens United v. Federal Election Commission (2010). All three cases involved high-profile public issues in which the Court was being asked to take a bold step: women’s rights in Sprogis, affirmative action and reverse discrimination in Bakke, and free speech in Citizens United. In each, Stevens declined to do so. He may be the least activist jurist on the Court today.

Pragmatism: One of the books that most influenced my thinking about Justice Stevens was The Metaphysical Club: A Story of Ideas in America by Louis Menand. Menand’s subjects include John Dewey and, by extension, Jane Addams, and Oliver Wendell Holmes, Jr. – three characters who play walk-on roles in Stevens’ story. Pragmatism, as a philosophy, is not about expediency or practicality, as the word often is used. It’s about optimism, freedom and the embrace of change. As an element of judicial philosophy, pragmatism seems the opposite of restraint. Yet to understand why pragmatism and restraint are not incompatible is to understand Stevens, in my view.

5. Tell us about your partner in this project, Gene Schlickman, who is listed as a co-author. What did he bring to the project and how did you divide up the work?

Gene Schlickman is a retired attorney and legislator who spent his career in public service. He was an Illinois state representative for sixteen years from Chicago’s northwestern suburbs. In 1966, he was chosen as “outstanding legislator” by Rutgers University, one of two legislators from the sixteen most populous states to receive the award that year. In 1967, the John Howard Association honored Schlickman for his efforts on behalf of rehabilitating offenders.

Gene and I knew each other from the years when I covered the Illinois General Assembly in the mid-1970s. Some time after, he called me and said he was undertaking a biography of Otto Kerner — a book that is now back in the news as the U.S. Supreme Court currently weighs the so-called honest services language in the federal mail and wire fraud statutes.

A year or so after our Kerner book received positive reviews, Gene proposed a second book, about another Chicago native, Justice John Paul Stevens. He performed tireless work for the book, photocopying Seventh Circuit opinions and law review articles not available on-line. He was my partner in travel research efforts at the Gerald Ford Library, the Library of Congress, and several other archives. His enviable contacts in Illinois’s political community are reflected in our focus on how Justice Stevens first won appointment to the federal court. And, on a personal note, Gene, who is eighty years old, is a contemporary of many characters in the book, a fact that made interviews far more interesting and productive.

6. Both as a jurist and as a person, Justice Stevens is widely admired for his integrity, ability, and humility.  Does the man have any flaws? Is there more complexity below the surface or buried in his past?

The episode from Stevens’ past that I get the most questions about is his divorce from his first wife, Betty, and swift marriage to a long-time family friend, Maryan Mulholland Simon. If such upheaval in the life of a Supreme Court Justice occurred today, it would be big news, especially on cable television. But the matter received almost no attention when it happened in late 1979. As the book states, many of Stevens’ friends as well as his children were taken aback by the divorce and remarriage. On the other hand, we could not find any evidence that it affected his work as a Justice or his relationships with his children.

Another highly sensitive matter was Justice Stevens’ relationship with his son, John Joseph. John, who was adopted, was the first child of John Paul and Betty. He had behavioral difficulties growing up, a pattern that was cited in one White House memo around the time of Judge Stevens’ nomination to the Supreme Court by Gerald Ford. John Joseph Stevens died in 1996, an event that devastated his father.

Going back much further in his life, the reputation of his father and grandfather suffered greatly in the 1930s during John Paul Stevens’ teenage years, when scandal and a criminal prosecution enveloped the family business. The story received front-page treatment in the Chicago newspapers. Late in his life, Justice Stevens’ brother Richard, who was instrumental in guiding John Paul to a career in law, wrote a play in which he revealed his belief that their father and grandfather were led astray by greed and pride.

Without embellishing the facts that my research associate and I were able to gather, it’s fair to conclude that these three elements of Justice Stevens’ life affected him in a lasting way. I believe his preference to stay out of the limelight, even when his thoughts and ideas could benefit Americans’ understanding of the Supreme Court and the law, arise at least in part from his intense sense of privacy related to these events.