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John Paul Stevens, leader of the Resistance

The following essay was written by Andrew Siegel, an Associate Professor of Law at Seattle University School of Law.  Professor Siegel clerked for Justice Stevens during the 2000 Term, and is the author of Justice Stevens and the Seattle Schools Case: A Case Study on the Role of Righteous Anger in Constitutional Discourse (43 UC Davis L. Rev. 927 (2010)) and Equal Protection Unmodified: Justice John Paul Stevens and the Case for Unmediated Constitutional Interpretation (74 Fordham L. Rev. 2339 (2006)).  He is a frequent commentator on constitutional issues and the United States Supreme Court.

The entries in this series collectively have painted a rich and nuanced portrait of Justice Stevens, demonstrating his warmth and grace, his skill as a common law judge, and the important contributions he has made to many substantive areas of the law.  Interestingly, however, they have touched only glancingly on the aspect of his career for which he will likely be best remembered.  For fifteen years, John Paul Stevens captained the defense in a pitched battle over the very nature of the judicial role.

When Justice Stevens joined the high court in 1975, his methods of reasoning and approach to judging were uncontroversial, mirroring those of most of his colleagues (and immediate predecessors) and resonating with the dominant strands of the American judicial tradition.  On matters of constitutional interpretation, he was pragmatic and multivariate, carefully weighing arguments pitched in a wide variety of modalities before reaching his conclusions.  On matters of statutory interpretation, he was deeply committed to a partnership model, in which judges bore the responsibility to fill in gaps and smooth rough edges in order to better effectuate the legislative design.  For Justice Stevens, like the great majority of Justices who served before him, a judge was not a neutered umpire passively surveying the field of play but an active albeit role-limited participant in the collective project of creating and maintaining a secure, free, and just constitutional democracy.

At the time of his appointment, there was little reason to think that Justice Stevens’ deep methodological commitments portended much about his substantive views or relative position on the Court’s ideological spectrum.  While his approach to judging was broadly consistent with the approach of liberal stalwarts William Brennan and Thurgood Marshall, it was equally in accord with the approach of many of the Court’s more moderate and conservative recent members, including John Harlan, Potter Stewart, Lewis Powell, and—in large measure—Byron White.

Within a decade, however, the landscape had drastically changed.  Motivated by a combination of principle and political calculation that is beyond the scope of this essay to untangle, a concerted group of legal and political actors launched an explicit assault on the prevailing norms and practices of our constitutional courts.  The signposts of this attempted judicial revolution are iconic:  the appointment of Robert Bork and Antonin Scalia to the D.C. Circuit in 1981 and 1982, the founding of the Federalist Society in 1982, the provocative series of speeches that Attorney General Edwin Meese delivered in 1985 and 1986, and the half-successful attempt to elevate Judges Scalia and Bork to the high court in 1986 and 1987.

The challenge posed by the Reagan Justice Department and its intellectual allies has shaped the course of our public law debates for the last quarter century.  As Jamal Greene and others have documented, the campaign these conservative revolutionaries launched was tactically brilliant.  Though their immediate concern was the substantive policy implications of the decisions reached by the Warren and Burger Courts, they expressed their concerns in more far-reaching (and neutral-sounding) methodological terms.  Though their preferred methodologies reflected, at best, one of two competing strands of the American judicial tradition, they decried the competing methodologies as not only ill-advised but also illegitimate.  Though the grounds on which they challenged the Court were technical and highly contestable, they focused heavily on their rhetoric, wrapping their controversial content in a one-sided vocabulary that marked their opponents as, among other things, “judicial activists.”

From the very beginning, Justice Stevens has been a pointed opponent of this campaign to reshape the norms and practices of the federal courts.  As others have chronicled in this series and as I have written elsewhere, Justice Stevens has routinely decried the “static” or “wooden” formalism of originalist constitutional theories and textualist approaches to statutory interpretation.  He has bravely defended a case-by-case approach to constitutional interpretation that frankly relies on judicial judgment to resolve difficult cases.  And he has withered many a blow from his ascendant conservative colleagues as he has modeled a vision of the judge as a humble and deferential yet actively engaged public official.

For the last fifteen years, Justice Stevens has been the senior skeptic on the Court, the intellectual and tactical leader of the Court’s anti-originalist, anti-formalist, anti-Reaganite wing.  While this is not a role that anyone would have predicted when Justice Stevens joined the Court as its politically moderate and methodologically unremarkable junior Justice in 1975, it is a role that, in retrospect, he was ideally suited to play.  As many have chronicled in this series and elsewhere, this was to some extent the result of biography, as the Justice’s experiences (including his service in World War II, his clerkship for Wiley Rutledge, his years of private practice, and his leadership of an anti-corruption probe in Illinois) shaped his substantive views and steeled his character.  As others have noted, it was also to some extent the result of character and temperament, as the Justice’s personal integrity and professional skill have earned him the respectful attention of his colleagues at many a crucial moment.

To all that, I would add the element of conviction.  For the last fifteen years, during a period of his life in which no one would have blamed him if he had chosen instead to spend his days enjoying a well-earned retirement, Justice Stevens has bounded into work with a twinkle in his eyes and his sleeves rolled up, ready to fight the good fight.  While certainly, his longevity owes a great deal to his love of the job and even more to his remarkable genetics, the Justice has also been buoyed by the deep-seated belief that he was living through a remarkable—and crucial—era in the history of the American judicial profession.  Hailed as “a lawyer’s lawyer and a judge’s judge” when first appointed, Justice Stevens has taken his methodological and professional commitments seriously.

Particularly in the last fifteen years, Justice Stevens has used his intellectual and tactical skills to defend what was once the mainstream approach to judging against a spirited challenge. In famous cases like Bush v. Gore, Parents Involved in Community Schools v. Seattle School District No. 1, and Citizens United, he has stood up eloquently against over-reaching majorities. In more obscure cases, like Alexander v. Sandoval and Zuni Public School District No. 89 v. Department of Education, he has gone toe to toe with Justice Scalia, in pitched arguments about the first principles of statutory interpretation and the remedial powers of the courts.  And in a wide variety of crucial areas, he has crafted opinions or helped hold together coalitions that, often improbably, have rolled back particularly troubling recent precedents. (In this regard, one might note, among others, his opinions in Central Virginia Community College v. Katz (sovereign immunity), Massachusetts v. EPA (standing) and Atkins v. Virginia (Eighth Amendment) and his leadership role in the Court’s decision to overrule Bowers v. Hardwick in Lawrence v. Texas.)

Surveying the landscape of American public law in 2010, most commentators have concluded that—at least so far—the revolutionary re-making of American judicial practice proposed by right-wing lawyers, academics, and politicians during the early 1980s has been only partially successful.  Much of the credit (or, depending on your perspective, blame) for slowing the advance of what at one point seemed like an inevitable revolution falls on the shoulders of a humble politically moderate Republican from Illinois: John Paul Stevens, Leader of the Resistance.