Remembering Justice Stevens: A lost link to our past

Gregory G. Garre is a partner in the Washington, D.C. office of Latham & Watkins and Chair of the firm’s Supreme Court & Appellate Practice. He served as the 44th Solicitor General of the United States from 2008 to 2009.

A somber, important and now familiar ritual is playing out, again. A casket solemnly carried up the marble steps of the Supreme Court. Members of the court — justices, clerks, court staff — public officials, and ordinary citizens lining up to pay their final respects while the casket lies in the great hall of the court. Glimpses of the grief-stricken faces of justices, a reminder that the court really is more of a family than we can appreciate.

We have seen this tradition carried out too often over the past several years. But it is also an opportunity to see the Supreme Court as an institution come together to honor one of its own, with the justices leaving aside their personal views (and disagreements) on this decision or that.

This time, we honor Justice John Paul Stevens. Much has been (and will be) written about the mark he left on the law. Reflecting on Justice Stevens, three things stand out to me.

* * * * *

The first is just how he connected us to our past. By tradition and design, the Supreme Court provides continuity, familiarity and stability in a government that otherwise is largely dominated by turnover. Justices are appointed for life and, fortunately, most serve for a long time. Justice Stevens is an all-time great in that sense. He served on the court longer (almost 35 years) than all but two other justices, and he lived longer than any other justice (99 years).

His decades of service on the Supreme Court spanned multiple chief justices (Warren Burger, William Rehnquist and John Roberts), a series of different doctrinal ebbs and flows, and numerous landmark decisions. Throughout, Justice Stevens was a constant, always there. All of the current justices served on the court with Justice Stevens, worked at the court as law clerks while he was there, or both. Even after he retired from active service, he remained a part of the court.

Justice Stevens also provided a link to our history. He is the last member of the Supreme Court who served in World War II, enlisting one day before the bombs dropped on Pearl Harbor. More than that, he seemed to have a Forrest Gump-like quality of intersecting with history’s moments and figures. He was in the stands at Wrigley Field in 1932 when Babe Ruth called his shot (then lived to see the Cubs actually win a World Series, 84 years later). He lived through the Roaring Twenties and Prohibition, while growing up in Chicago. He recalled meeting Charles Lindbergh and Amelia Earhart, the former of whom reportedly gave him a caged dove.

In a sense, Justice Stevens connected us, and the Supreme Court, to this past. History always marches on. But the loss of this link feels more palpable with Justice Stevens’ passing.

* * * * *

The second is what Justice Stevens was like on the bench. Oral argument before the Supreme Court today has become something of a blood sport, with aggressive questioning from all flanks. Justice Stevens was a throwback. Instead of trying to get first blood, he typically waited until the close of argument to ask a question. And he did so in an unfailingly polite fashion. One of the first questions he asked me as solicitor general started like this, “May I ask this question, Mr. Solicitor General?” Seriously, he was that polite — in a case where he disagreed with my position, no less. In fact, his questions often started with an unassuming, “May I ask…?” That seems almost quaint today. But I miss his uniquely low-key style on the bench.

That doesn’t mean I miss his questions. His disarming manner of asking questions masked the fact that he often asked the most difficult questions, zeroing in on the key legal principle or fact at the crux of the case, and asking an advocate in the kindest way if they would just agree with him on a point, leaving them to realize only later that they had often sunk their case by doing so. It always reminded me of the detective show “Columbo,” another link to the past. Just when the lead suspect would think they had gotten away with it, Columbo (played by Peter Falk) would return to the scene of the crime, raise his finger, pause for a moment, and say, “There’s just one more thing.” And that would be the question that did the suspect in.

Waiting for Justice Stevens to ask that question as time was winding down was one of the scariest moments of oral argument.

* * * * *

And the last is the example that Justice Stevens set as a person. From my interactions with him as an advocate before the Supreme Court and a law clerk for Chief Justice Rehnquist, and the few other times we spoke, he was true to his Midwest roots — a kind, humble, friendly person, even despite his important position. Certainly he treated the advocates who appeared before him much more courteously than he had to. He was that way off the court too. And from what I could tell, he also had the important quality, for a Supreme Court justice and really anyone else, of being able to disagree yet get along. That’s not always as easy as he made it look.

He will be missed.