Justice Stevens, champion of the powerless

If the thirty-one essays in SCOTUSblog’s series on John Paul Stevens convey any message in unison, it is that the retired Justice believes in definite limits on the role of a judge (Frederick Schauer, Rodger Citron, Andrew Siegel, Jamal Greene, Joseph Thai, James Liebman).  That observation is so widely made in our series, as elsewhere, that I feel a tad guilty about writing an overview on any other subject.

But I think that an exclusive focus on judicial restraint misses something essential about Stevens.  For even a restrained judge must decide cases when there is no precedent to follow and no other actor tasked to decide.  And Stevens has, when he feels it is his place, vigorously asserted judicial power.  Perhaps in addition to Chevron v. Natural Resources Defense Council (1984), those are the opinions for which Stevens will be best remembered.

The bolder side of Stevens’ jurisprudence is better explained by another insight from our series: that Stevens is – and has been since his appointment – a champion of the powerless against the powerful.   Stevens has taken a leading role in ensuring that power is exercised transparently and judiciously, and that individuals at its mercy are treated fairly.   That often means enforcing strict rules of conduct against the government and other powerful actors, while applying a more flexible standard to the conduct of less powerful individuals.   This simple thesis comes across in essays by professors Daniel Farber (clerk OT76), Rory Little (part-time clerk OT84), Gregory Magarian (clerk OT94), Jeffrey Fisher (clerk OT98), Deborah Pearlstein (clerk OT00), and Pamela Karlan (election law scholar).

The cases cited below as evidence, taken largely from our series, are among the most important Stevens has written.   In Rasul and Hamdan, Stevens firmly asserted the right of habeas corpus against the executive during wartime, laying the groundwork for non-citizens to claim that right in the landmark Boumediene.   In Apprendi, he expanded the right to a jury trial into the sentencing phase.   Throughout his career, he has pushed back against unethical and even negligent prosecutors and police, as one of the staunchest defenders of the rights to Miranda warnings and Brady disclosure of exculpatory evidence.   In politics, he has passionately defended campaign finance regulations on corporations and unions, authoring the critical, though now partly overruled, McConnell.

In arguably the two most important opinions of his career, Rasul v. Bush (2004) and Hamdan v. Rumsfeld (2006), Stevens thwarted the Bush Administration’s attempt to detain and try prisoners from the war on terror without civilian court review.  In Rasul, Stevens held that federal courts have jurisdiction over Guantanamo Bay, the remote military base in Cuba where the Administration detained prisoners.  In Hamdan, Stevens rebuked the President again – and Congress – for planning to try the detainees in military commissions that violated the Geneva Conventions and federal law.

Rasul and Hamdan illustrate the inflexibility of Stevens’ commitment to strict rules of due process (Farber).  National security concerns in the wake of the September 11 terrorist attacks were, in Stevens’ view, an unpersuasive justification for relaxing them.  In so many past wartime decisions, the Court had deferred to the president’s “superior expertise” in national security (Pearlstein).  But in Hamdan, when the government contended that applying the rules of courts-martial in the war on terror was “impracticable,” Stevens demanded a tighter link between the danger and the need to relax due process: “[T]he only reason offered in support of that determination is the danger posed by international terrorism.  Without for one moment underestimating that danger, it is not evident to us why it should require, in the case of Hamdan’s trial, any variance from the rules of courts-martial.”  Even though it is clear that Congress has the constitutional power to suspend the right of habeas corpus, Stevens insisted, in joining a dissent in Hamdi v. Rumsfeld (2004), that it could not do so lightly, without clearly expressing its intent.

Even outside the habeas context, Stevens has a deep “commitment to ensuring access to the courts” for disadvantaged parties (Farber).  The Court occasionally considers new rules restricting filings by pro se petitioners, or those who represent themselves, because their petitions are almost invariably frivolous.  As Stevens admits in his foreword to Kenneth Manaster’s biography of him, he among the current Justices is most sympathetic to these petitioners, and consistently defends their right to file even when it means more work for him and his clerks.

And Stevens has not policed any power imbalance more diligently than that between the ordinary criminal defendant and officers of the state.  As seven essays in this series note, a highly individualized review of each case is fundamental to Stevens’ notion of due process in the criminal justice system (Jeff Fisher, Rory Little, James Liebman, Diane Amann, Christopher Smith, Lauren Sudeall Lucas, Frederick Schauer).

Stevens has waged an incremental but longstanding campaign to expand the Sixth Amendment right to a jury trial.  Jeff Fisher attributes to him the same view expressed by Justice Byron White in 1968 that the Sixth Amendment is “reluctan[t] to entrust the plenary powers of life and liberty of the citizen to one judge or to a group of judges” (Duncan v. Louisiana).  In his own groundbreaking opinion in Apprendi v. New Jersey (2000), Stevens found that the Sixth Amendment requires a jury, rather than a judge, to find the facts used to sentence a defendant.  His commitment to the jury trial has even occasionally overcome his respect for precedent.  In Ring v. Arizona (2002), Stevens led the Court in overturning a twelve-year-old precedent, Walton v. Arizona (1990), which had held that a judge alone may find facts necessary to impose the death penalty (Fisher).  And Fisher notes that Stevens hinted this Term in his United States v. O’Brien concurrence that some future Court might overrule McMillan v. Pennsylvania (1986), which allows a judge to find facts that trigger a mandatory minimum sentence.

In capital cases, when the stakes are the very highest for the individual, Stevens is lenient toward the defendant and tough on criminal justice officials.  He favors state death penalty statutes that restrict even a jury’s option to impose a death sentence to cases in which “aggravation substantially outweigh[s] mitigation” (Liebman).  Despite searching for most of his career for a way to reconcile the death penalty with the Eighth Amendment, Stevens concluded recently that it is unconstitutional (Baze v. Rees (2008), (Amann)).  He argued not that the penalty was inherently cruel and unusual but that no stringent enough process could be found to constitutionally apply it: “given the real risk of error in this class of cases, the irrevocable nature of the consequences is of decisive importance to me.”  (Ultimately, Stevens defers to precedent saying that the death penalty is constitutional.)

The flip side of more flexible review for defendants is rigid rules of conduct for powerful officers of the criminal justice system, beginning with prosecutors.  Stevens “both began and ended his career on the Court as a strong enforcer of prosecutorial ethics,” as Rory Little argues.  During his first Term on the Court, Stevens articulated the rule that prosecutors have an unqualified duty to disclose exculpatory evidence even without a specific request from the defense (United States v. Agurs (1976) – widely hailed as “the best of the Brady bunch”).  With a specific request, refusal to respond is “seldom, if ever, excusable.”  Throughout his entire career, Stevens has cited Brady v. Maryland (1963), the case requiring prosecutors to turn over exculpatory evidence to the defense, in no fewer than seventeen of his opinions, and mentioned prosecutorial misconduct in another seven (Little).

Nor does Stevens place unrestrained trust in the police.  Based on a review of cases since 1975 that were classified as Miranda issues, Christopher Smith finds that “Justices Stevens and Marshall were the most consistent supporters of Miranda rights.”  This Term, while Stevens agreed with a unanimous Court’s judgment in Maryland v. Shatzer that the Edwards rule – that the police may not continue to question a suspect once he has invoked his Miranda right to counsel – does not protect a suspect “eternally,” he refused to accept the Court’s narrower interpretation that the rule “always ceases to apply when there is a 14-day break in custody.”

Stepping back from our series to find evidence this Term for its underlying thesis, we see Stevens taking a hard line toward even well-meaning but negligent officers of the court.  In his Padilla v. Kentucky opinion, the Court held that immigrant lawyers must inform their clients of the possible deportation consequences of a guilty plea.  In his dissent this Term in Renico v. Lett, Stevens would have held that the defendant had suffered double jeopardy, because “[the judge who declared a second trial] did not fully appreciate the scope or significance of the ancient right at stake.”

Stevens’ skepticism of power does not stop with government power.  Emphasizing that “the powerful must not dominate public debate” (Gregory Magarian), Stevens has also upheld both incentives for disadvantaged speakers and regulations on speakers who enjoy advantages.  Based on an impressive array of case examples, Magarian argues that Stevens pays “particular attention to how [the Court’s First Amendment] decisions influence the capacities of ordinary people to participate in, and benefit from, public discourse.”  A Stevens opinion persuasively adduced by Magarian is United States v. National Treasury Employees Union (1995), in which the Court rejected a restriction on the acceptance of gifts or money for public speaking by federal employees, but only as it applied to employees at pay grades below the most senior executive officials.  Similarly, he has pushed hard to fend off facially content-neutral restrictions on media favored by “speakers of modest means.”  For example, he wrote for the Court in McIntyre v. Ohio Elections Commission (1995), allowing the distribution of anonymous pamphlets, and in City of Ladue v. Gilleo (1994), allowing the erection of political signs.

As Magarian points out, Stevens ends his career as a “vocal defender” of campaign finance regulation.  His rare rhetorical side shines through in Nixon v. Shrink Missouri Government PAC (2000) when he declares in his concurring opinion that “[m]oney is not speech,” and he reiterates that standard in his opinion in McConnell v. Federal Election Commission (2003).  In his vigorous ninety-page dissent this Term in Citizens United v. Federal Election Commission, which partly overruled McConnell, Stevens writes of the imperative of distinctions between the corporation and individual, most of all because corporations are more likely to create real, or even apparent, quid pro quo corruption in politics.

As a son of a wealthy family, a student of elite schools, and a former Chicago antitrust lawyer, Stevens was certainly not predestined to be a champion of the powerless.  Biographical essays in our series point to other experiences in Stevens’ life that seem to have shaped his wariness of power imbalances in American society.  Both Magarian and Karlan see possible roots in Stevens’ early years observing the machine politics of mid-twentieth-century Chicago; other authors mention his role in the investigation of corruption on the Illinois Supreme Court (Manaster, Amann, Siegel).  As for criminal law, images of police brutality seem to have been engrained in Stevens’ mind by a case he handled in law school, People v. LaFrana (1954), which he mentioned in speeches as recently as 1991 and 2004 (Smith).

Several authors cannot resist speculating that Stevens’ broader concern for the powerless in law is mirrored in his own personality.  He is often empathetic to advocates before the Court, law clerks, and others (Harris, Magarian, Manaster, Jeffrey Lehman).  As Pamela Harris puts it, Stevens has “a visceral distaste for anything that might seem – or feel – like an abuse of authority.”

There may seem to be tension here between Stevens’ restraint and his assertiveness, both of which come across in our series.  Stevens did not, after all, deliver the final constitutional blow against the Bush Administration’s detention regime (that was Justice Kennedy, in Boumediene v. Bush (2008)).  His Sixth Amendment campaign has advanced incrementally.  He still defers to precedent on the death penalty in spite of his constitutional qualms.  And often, even after individualized review, he rules against the disadvantaged party (as in Maryland v. Shatzer).  But for all his restraint, Stevens has given the powerless several concrete legal tools to resist the abuse of power.  Did these rulings contradict Stevens’ vision of the judicial role?  Perhaps not: an integral part of that role seems to be defending the little guy.