John Paul Stevens—Judge and Teacher

Below is an essay by Kenneth A. Manaster for our thirty-day series on John Paul Stevens.  Manaster is a law professor at Santa Clara University, and has written a book on Stevens’ involvement with a 1960s investigation of corruption on the Illinois Supreme Court, Illinois Justice:  The Scandal of 1969 and the Rise of John Paul Stevens (University of Chicago, 2001), as well as the essay “Justice Stevens, Judicial Power, and the Varieties of Environmental Litigation,” Fordham Law Review (2006).

Like a few others invited to write for this series about Justice Stevens, I believe an invitation was extended to me more because of my long friendship with him than because of my scholarly interests or our professional association.  As principally an environmental law teacher, I have already written elsewhere about John’s work on the Court in that subject.  As one of the small, lucky group of young Chicago lawyers who worked under him in the 1969 Special Commission investigation of the Illinois Supreme Court, I also have written a history of that remarkable, pivotal chain of events.  In the ensuing forty-plus years, my friendship with John has been a great joy, but reflections on simply a personal connection cannot be presumed to be of much interest or benefit to others.

What, then, might I offer to readers who follow Justice Stevens’ career?   Mulling this over, I happened upon a 1994 commencement address by the author Kurt Vonnegut.     He spoke of the value to each of us of learning from “one person who could really teach, whose lessons made life and yourselves much more interesting and full of possibilities than you had previously supposed possible.”    It suddenly struck me that perhaps the reason John Stevens is so widely admired, indeed revered, is because he has been not just a great judge, but a great teacher, too.

Early on John Stevens had an inclination, and some perceived talent, to be a teacher.   At the time of his college graduation, and then as he looked to return from the War, John’s initial plan was to pursue graduate study in English.    That path presumably would have led to an academic career.    After John started his historic, lifetime detour into the law, and then completed his clerkship with Justice Rutledge, Rutledge was in contact with the law school deans at the University of Chicago and Yale about possible teaching positions for John.   Rutledge was enthusiastic about that path for him, but John was not interested at the time.  Instead he chose to enter practice.   Even then, he became a teacher as well as a lawyer.   First he filled in for a regular faculty member in the antitrust course at Northwestern, and then he taught that subject both there and at Chicago.

I knew none of this background when I first met John while working on an antitrust case in 1968 and then shared the intense Special Commission case the following summer.    What I did soon realize was that this was a man from whom I could learn a lot.   Indeed I have, and so have others who have worked with him and for him, as well as those who know him only through his judicial opinions or journalistic and scholarly accounts of his life and work.

What has he taught us?    Each admirer’s list is likely to have distinctive entries, yet many of his lessons have been widely received and appreciated.   My list is long, but here are a few highlights.

First, in the pressure cooker of our 1969 investigation, he showed me how to get organized, get focused, and dive in when challenged with a chaotic legal controversy.    He walked another of his young helpers and me down LaSalle Street to the Civic Center Bank, the epicenter of the scandal, and set us to work.  He offered a remarkably sensitive blend of just a few specific directives on our work coupled with a quiet message of his confidence that we had what it took to do the job and could figure out on our own how to deal with the jumble of documents, concealed smoking guns, and hostile custodians of the facts we needed to unearth.    In short, he didn’t teach us what to do as much as he helped us learn what we were capable of doing.   I realize that his generous words to us a few months later about our work describe his own long career very well.   It is now our turn to speak of “the uncompromising way in which [he] consistently strove to achieve a level of performance that would satisfy not somebody else’s idea of what should or could be done, but [his] own knowledge of what ought to be done with the raw material at hand.”

In the same vein, when he gently but firmly directed me (in a 1:00 a.m. phone call) to quickly take a deposition (on the Fourth of July weekend) of a key witness we had suddenly found, he gave me just the right amount of direction and moral support.    I’m not sure whether I confessed that I’d never taken a deposition before, but I think he figured it out.  He reassuringly assigned a more experienced member of our overloaded team to second chair the event with me.  In this little incident, he also taught me about the lawyer’s constant responsibility to think ahead and be prepared that things might go sour.    I had obtained powerful information from this witness in a late-night interview.  John’s insistence that I have her reiterate it in a deposition sprang from his anticipation that she might later change her story.    To my astonishment, but probably not his, in the public trial a couple weeks later the witness did just that.  John brought forth the deposition to great and necessary effect.

In other words, I had received from Stevens the litigator a short course in fact investigation, trial preparation, examination of hostile witnesses, and, most importantly, self-confidence.    I don’t mean to say that everything I needed to know to practice law I learned from John Paul Stevens.   I probably would have picked up many of these tidbits eventually from some other lawyers I worked with or observed.   However, the lessons most likely would not have been delivered by others with such consistent clarity and courtesy, and been so easy to digest despite the urgency of the work at hand.

Another thing John taught me, by his example as well as his words, was that if you make a mistake as a lawyer, it’s best to admit it and be profoundly grateful for any second chance you may get to rectify the mistake or at least mitigate damage it has caused.    As I have recounted elsewhere, John’s sympathy for a faltering witness in the 1969 trial led him to back off on his cross-examination, even though the witness was the chief justice of the state supreme court and a principal culprit in the scandal.    John did not do all he should have with the witness.   When this was brought to his attention, and an opportunity was provided to finish the job that had to be done, he prepared for it and executed it with tenacity and skill, as well as with the courtesy for which he has become so well known.

Probably the most obvious, and perhaps enduring, lessons John Stevens has taught us are about the content of the law—what he thinks are its substance and objectives, as expressed in the Constitution, the laws enacted by Congress, the regulations adopted by administrative agencies, and other sources, including the judiciary itself.    He has taught us some new ways to think about its content, its processes, and its purposes.  As many other commentators have discussed, he has taught us much about what a judge should do and not do.  In one of his opinions for the Court, Heckler v. Community Health Services (1984), he spoke of the importance of “decency, honor, and reliability” in the functioning of our government.   These, of course, are among the traits for which he is frequently lauded.

I have often heard John refer in passing to his service on the Supreme Court as his “job.”   These offhand references have always struck me as significant and reassuring, for there are judges who see their positions differently.    There are those, though not many I believe, who see themselves as bigger or better human beings, as special personages because they think judicial power was made for them and they for it.  John Stevens has never succumbed to that enticing delusion.   He has shown us that you can be given an historic opportunity to do important work, yet still be the same, modest person you were before the big “job” came your way.   And now—though we may wish it didn’t have to be—he has shown us how to retire from the stage with honesty, grace, and sensible timing.

As mentioned above, my list of John’s lessons would be long, and I suspect many readers would find theirs to be long as well.    One more entry deserves mention, as I am sure it would be included by many:   By word and deed, John has repeatedly emphasized that to follow the law is to understand the limits it places on our inclinations to expand our tasks and powers beyond their proper bounds.    He has repeatedly spoken of and honored the constraints under which a judge ordinarily should operate, above all the constraint to follow established law even if it conflicts with the judge’s own preferred outcomes.   Even as a lawyer decades ago, John honored an analogous constraint when he delivered his closing argument in the trial of the Illinois justices.    He wanted very much to urge publicly that they should resign their positions, in light of their serious misconduct.   He knew, however, that it was not his role to do so.  As what we now would call an “independent counsel,” his assignment was just to collect and present the facts.   It was for others to decide what consequences should follow.    In other words, John has been teaching us for years that justice must consistently emanate from the law and its orderly processes, not from the personal conclusions of the men and women who happen to have access to public pulpits or the bench.

About seventy years ago, John Stevens thought he might become a teacher.   In the way that Kurt Vonnegut described, John did.   He has given us innumerable lessons about sensible and inspiring possibilities for our lives and our law—possibilities we sometimes forget are still possible.   We are fortunate that John Paul Stevens has been our judge and our teacher.    “Besides,” as David Souter perfectly put it last month, “he’s a friend of mine, which makes me as lucky as anyone can get.”