Stephen Gottlieb: John Paul Stevens

Jul 23, 2019

A lot of us will miss Justice Stevens. As a judge on the Seventh Circuit Court of Appeals, based in Chicago, Stevens had a reputation as the sharpest mind on the Court. President Ford’s nomination of Stevens for the Supreme Court was widely hailed as an excellent appointment.

Stevens was always sensitive to the consequences of his decisions on those who had the least resources to deal with it. Dissenting in an antitrust case, Stevens wrote:

The transparent policy concern that drives the decision is the interest in protecting antitrust defendants--who in this case are some of the wealthiest corporations in our economy--from the burdens of pretrial discovery.[1]

As he gradually became beloved by liberals, he kept repeating that the Court had changed around him but he himself had not changed. One thing had changed. Stevens learned what was actually happening in the real world outside the Supreme Court building. He realized that the criminal justice system was not nearly as accurate as one would want when the question is whether to put someone to death, turning him from a supporter to an opponent of the death penalty.[2] He came to understand the role that affirmative action played in overcoming discrimination against people with black and brown skins. In a 1995 case about giving black contractors a leg up in government contracting, Stevens wrote: “The consistency that the Court espouses would disregard the difference between a "No Trespassing" sign and a welcome mat.”[3]

After his appointment he refused to discuss politics and followed neither party’s views consistently. In Bush v. Gore, he voted against the Court’s decision to stop the recount, the centuries old solution to disputed elections, writing that:

the Florida court's ruling reflects the basic principle, inherent in our Constitution and our democracy, that every legal vote should be counted.[4]

But in a case from Indiana, he upheld identification requirements that, as Justice Souter detailed in dissent, clearly burdened the poor, the aged and the infirm. [5] Stevens later realized that the fear of fraud was made up, described it as “a fairly unfortunate decision,” and described Souter’s dissent as “one of his best opinions.” [6]

In gerrymandering cases, Stevens became an advocate for “the symmetry standard, a measure social scientists use to assess partisan bias, which is undoubtedly ‘a reliable standard’ for measuring a ‘burden . . . on … representative rights’….” [7]

He was not perfect. I represented a group of political scientists as friends of the Court in a 1986 case. There was an issue that plaintiffs’ attorney and I both thought such transparent nonsense that we didn’t bother to brief it. Sure enough Stevens fell for it, though the majority of the Court went our way. It wasn’t Stevens’ last mistake but it proved he was human.

I’ve always felt that the term “Justice” in the title of members of the Supreme Court is a term that needs to be earned. During one argument in the Supreme Court, a woman lawyer kept referring to William Rehnquist, who was then the Chief, as Judge, and Rehnquist kept lambasting her for it. Stevens interrupted, “It’s all right counsellor; the Constitution makes the same mistake!” It does, indeed, in Art. III, sec. 1.

Stevens was not only smart. He was a judge; not a partisan. He cared about the effect of his decisions and showed a willingness to learn. Stevens clearly earned the term Justice.

[1] Bell Atl. Corp. v. Twombly, 550 U.S. 544, 596 (2007).

[2] Linda Greenhouse, Supreme Court Justice John Paul Stevens, Who Led Liberal Wing, Dies at 99

[3] Adarand Constructors v. Pena, 515 U.S. 200, 244-45 (1995). He continued: “It would treat a Dixiecrat Senator's decision to vote against Thurgood Marshall's confirmation in order to keep African Americans off the Supreme Court as on a par with President Johnson's evaluation of his nominee's race as a positive factor. It would equate a law that made black citizens ineligible for military service with a program aimed at recruiting black soldiers. An attempt by the majority to exclude members of a minority race from a regulated market is fundamentally different from a subsidy that enables a relatively small group of newcomers to enter that market. An interest in "consistency" does not justify treating differences as though they were similarities.”

[4] Bush v. Gore, 531 U.S. 1046, 1048 (2000) (Stevens, j., dissenting)

[5] Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 211-12 (2008) (Souter, J., dissenting).

[6] Robert Barnes, Stevens says Supreme Court decision on voter ID was correct, but maybe not right, Washington Post, May 15, 2016.

[7] League of United Latin Am. Citizens v. Perry, 548 U.S. 399, 466 (2006) (Stevens, J, dissenting). Stevens continued, “The symmetry standard ‘requires that the electoral system treat similarly-situated parties equally, so that each receives the same fraction of legislative seats for a particular vote percentage as the other party would receive if it had received the same percentage.’ This standard is widely accepted by scholars as providing a measure of partisan fairness in electoral systems.”

Steve Gottlieb’s latest book is Unfit for Democracy: The Roberts Court and The Breakdown of American Politics. He is the Jay and Ruth Caplan Distinguished Professor Emeritus at Albany Law School, served on the New York Civil Liberties Union board, on the New York Advisory Committee to the U.S. Civil Rights Commission, and as a US Peace Corps Volunteer in Iran.

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