On Political Books

November/ December 2011 Justice Served

U.S. Supreme Court Justice John Paul Stevens's thirty-five-year tenure was marked by intellectual rigor, lack of pretension, and the firm belief that absolutism had no place on the bench.

By Michael O'Donnell

Five Chiefs: A Supreme Court Memoir
by John Paul Stevens
Little Brown and Company, 340 pp.


In an age of judicial philosophies, abstract methods of interpretation, and trite baseball metaphors, John Paul Stevens was a common-law judge. Justice Antonin Scalia practices textualism; Justice Clarence Thomas practices originalism. Chief Justice John Roberts is developing a sort of reactionary legalism. Even the Supreme Court’s liberals have gotten in on the game. In a head-scratching 2005 book, Justice Stephen Breyer professed his theory of “active liberty,” which has not exactly caught on as a beacon for progressive constitutionalists.

Through the din of this nonsense one delighted to hear the strong plain chords of a Stevens, who harkened back to an earlier breed of jurist. His lights were not the socalled “neutral principles” hashed out in law review articles and perfected in warlike opinions by judge-partisans. They were centuries-old practices like judicial restraint, respect for the Court’s precedents and procedures, and, above all, an anachronistic faith in judges’ discretion. In his new book, Five Chiefs: A Supreme Court Memoir, Stevens favorably quotes Justice Potter Stewart, who famously said of obscenity, “I know it when I see it.” But where, cry the legal theorists, is the principle in that sort of decision making? Stevens might reply that it’s amazing how many cases a judge will get right when he has no dogma to uphold and no movement to lead.

Stevens’s retirement from the Supreme Court in 2010 after thirty-four years of service was a tremendous loss for the country. As the senior associate justice for sixteen years, he led the liberal wing through the Court’s highest and lowest moments since Watergate. The high point both for the institution and Stevens personally was the trio of war-on-terror cases in which the Court put a stop to President Bush’s lawlessness at Guantanamo Bay. Stevens wrote the two most important opinions—Rasul v. Bush (2004) and Hamdan v. Rumsfeld (2006)—and supervised a majority in a third, Boumediene v. Bush (2008). (He dissented in two other war-on-terror cases in 2004.) The low point was a pair of decisions that might best be described as institutionalized lawlessness. In Bush v. Gore (2000) the Court reached out and handed Bush the presidency, and in Citizens United v. Federal Election Commission (2010) it struck down most legal restrictions on corporate campaign spending. Stevens issued the two great dissents of his career in those cases, noting pointedly the damage the Court had done to itself. If only he were still there to help with the repairs.

The Court’s liberals stood behind Stevens in Citizens United—as they did throughout much of the 2000s. He proved a canny strategist and leader, assigning opinions in a way that preserved majorities and shaped future coalitions. He secured key victories in decisions limiting capital punishment and permitting affirmative action. In Five Chiefs he implies that he cultivated Justice Anthony Kennedy in gay rights litigation from the mid-1990s. Stevens assigned Kennedy to write the Court’s 1996 opinion in Romer v. Evans, which struck down a Colorado constitutional amendment that targeted homosexuals. He again gave Kennedy the honors in 2003’s Lawrence v. Texas, which invalidated Texas’s antigay sodomy law. It may simply be that Kennedy was the justice least sure of his majority vote and Stevens prudently gave him the assignment to solidify it. Then again, Stevens may have sensed that the subject matter would appeal to Kennedy, who never misses a chance to write for the ages. Regardless, in the gay marriage and Defense of Marriage Act cases that are sure to come, liberals can thank Stevens that we have a good chance at Kennedy’s decisive vote.

This recent leadership was a welcome surprise given that Stevens spent his early years on the Court as an unpredictable maverick. He arrived in 1975 as President Ford’s sole appointment and immediately displayed confident independence tempered with midwestern geniality. He politely declined to join the “cert pool,” by which the justices’ law clerks share the work of reviewing thousands of petitions for the Court’s attention. He dissented prodigiously and made a habit of filing concurring opinions to explain his quixotic views. As his biographers Bill Barnhart and Gene Schlickman note in John Paul Stevens: An Independent Life, during his first three terms Stevens “was the most prolific writer on the Court, authoring 65 dissents, 35 concurrences, and 36 opinions for the Court.” Uniquely among the justices, he did all his drafting himself. “John Paul Stevens has not yet begun to write,” went the saying at One First Street.

Stevens has a rare intellect, but unlike many of his colleagues he wore his learning lightly. Unlike Justices Breyer and Kennedy, he had no continental pretensions and did not look for the opportunity to speak a little French. Justices Roberts and Scalia are both brilliant in their way, yet they manifest that brilliance with disdain (Roberts) and shrill mockery (Scalia) of those who disagree. Stevens quietly but firmly pushed back, proving himself a match for any justice on the Court. In District of Columbia v. Heller (2008), which overruled a seventy-year-old precedent to hold that the Second Amendment creates an individual right to bear arms, he dissented with a historical analysis more persuasive than Scalia’s. In Five Chiefs Stevens bemusedly describes the “extensive and interesting discussion[s] of history” in Scalia’s opinions while making clear that such methodology is not the talisman that his brethren think. But he could play the game when he had to.

Another fine example of Stevens’s stolid fighting heft is his ninety-page dissent in Citizens United. His opinion was so thorough and devastating that the majority divided the task of responding to it among Roberts, Scalia, and Kennedy, each of whom took on a section. One of the main points of disagreement between the dissent and the majority was the conservatives’ assertion—in the face of 100 years of federal laws and Court decisions to the contrary—that the First Amendment does not permit distinctions between speech by corporations and speech by individuals. After listing an unanswerable litany of major distinctions— including the financial resources of corporations, their limited liability, and their perpetual “life”—Stevens wrote,

The Court’s facile depiction of corporate electioneering assumes away all of these complexities. Our colleagues ridicule the idea of regulating expenditures based on “nothing more” than a fear that corporations have a special “ability to persuade,” as if corporations were our society’s ablest debaters and viewpoint-neutral laws such as [McCain-Feingold] were created to suppress their best arguments.… In the real world, we have seen, corporate domination of the airwaves prior to an election may decrease the average listener’s exposure to relevant viewpoints, and it may diminish citizens’ willingness and capacity to participate in the democratic process.
Michael O'Donnell , a frequent contributor to the Washington Monthly, is a lawyer living in Chicago with his family.

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