Remembering Justice Stevens

Ian Heath Gershengorn is Chair of Jenner & Block’s Appellate and Supreme Court practice, and he served as Principal Deputy Solicitor General and as Acting Solicitor General in the Obama Administration; he was a law clerk to Justice John Paul Stevens in 1994-1995.

Justice Stevens was a brilliant justice and a wonderful boss. In thinking about how to convey who the justice was, I think first of his dissents, not for what they show of his jurisprudence — I leave that to others — but instead for what they show about the justice as a person. In those dissents, large and small, the justice revealed a bit of himself and what made him so special.

Let’s start small, with Supreme Court Rule 39.8. That rule allows the court to deny “in forma pauperis,” or IFP, status to frequent and abusive filers, forcing them to pay a filing fee for their petitions to be heard. The order lists from the court routinely contain boilerplate language directing the clerk not to accept the filings of a petitioner who has flooded the court with filing after filing. The court’s practice is reasonable and perfectly understandable. But Justice Stevens routinely dissented from those orders. He explained his reasoning in several dissents in the early 1990s, and I remember his making the same point with us in chambers. The burden on the Supreme Court, he thought, was trivial — the challenged petitions were denied routinely on the substance — but even a heavier burden would be far outweighed by the “shadow it casts on the great tradition of open access that [has] characterized the Court’s history.” For Justice Stevens, it was essential to make clear to “both the rich and the poor” that the court’s doors were always open.

I also remember his willingness to dissent in some of the court’s least controversial (and often least consequential) decisions. The spate of 8-1 decisions with the justice’s occupying the role of lone dissenter earned him a reputation of being an iconoclast. In the term when I clerked, articles were written calling the justice and his jurisprudence “quirky.” He didn’t like that description, he told us, because as far as he was concerned, he was just doing his job. His reaction captured something important about the justice and his approach to the law. He was committed to getting it right in every case. No issue was too small, and no case too routine, to demand anything less than his full attention and consideration. If his review of the law and the facts led him off on what others thought a tangent, so be it, as he believed that the parties and the court deserved no less. And because of the way he approached his task – with respect for the majority and a calm conviction in his own position – his lone dissents conveyed his views while his relationships with his colleagues remained as warm as ever.

I recall too his dissents in the flag-burning cases. It was a rite of passage among the clerks to engage with the justice on his dissents in those cases because his approach seemed so out of step with his usual role as a staunch defender of the First Amendment. But he was a proud military veteran — his work as a naval intelligence officer in World War II was long classified but now is in the public record — and the cases reflected his own deep love of his country and of the flag that is the nation’s distinct and important emblem.

His dissent in Bush v. Gore is likewise revealing. I am not breaking new ground to say that he viewed the case as devastating to the Supreme Court as an institution and to America’s court system more broadly.  Agree with him or not, there can be no dispute that the dissent reflected the justice’s complete and total dedication to, and belief in, the importance of judges as (in his words) “impartial guardians of the rule of law.”

And finally, I think of his writings at the end of his career — styled as concurrences but effectively dissents — in death penalty cases. Those opinions emphasized what he saw as the inappropriateness of the death penalty in today’s society: His opinions described it as “a relic of the past” “inconsistent with evolving standards of decency in a civilized society.” And in so doing, those opinions were of a piece with the justice’s broader commitment to making the justice system fairer for all.

Justice Stevens devoted his life to serving as an “impartial guardian of the rule of law.” I will miss him dearly.