Justice John Paul Stevens from the bench: arguments, questions, and dissents

Justice John Paul Stevens’ civility, intellect, and convictions are evident during both oral arguments and his announcement of opinions from the bench.  During oral arguments, he is polite, thoughtful, and humorous.  Pointed in his questioning, he seeks to understand the facts in every case.  He has occasionally chosen to read dissents from the bench when he seriously disagrees with the majority.  This compilation includes clips which illustrate these components of Justice Stevens’ demeanor , as well as clips from Stevens’ most prominent opinion announcements, as selected by the SCOTUSblog team in consultation with scholars, past clerks, and advocates.  The audio, compiled and formatted by Kim Gittleson, a writer from Gotham Schools, was accessed on Oyez.org, and information on Stevens’ dissents was retrieved from a paper by Jill Duffy and Elizabeth Lambert.

Listen to the compilation here, and download the transcript here.

Justice Stevens is now renowned for his habit of prefacing questions by asking whether he can ask a question.   In Elk Grove Unified School District v. Newdow (0:01), he began by asking “may I ask you just one question?  I hate to take your rebuttal time…”  On another occasion, he began with a self-deprecating inquiry: “may I ask what might be an awfully elementary and stupid question? (0:43)”  However, former Solicitor General Paul Clement warns that advocates should be on their guard when Stevens asks a question, as that question frequently signals that Stevens has “probably found the one issue that puts your case on the line.”  And Stevens’ extremely courteous opening line does not reflect a lack of knowledge of the facts; to the contrary, veteran advocate Andrew Frey is most impressed by “his familiarity with details of the record, reflecting the care and attention he gave to the cases.”

In the Justice’s view, “the questioning should be designed to help understand what the arguments on both sides are in order to enable the justice to reach a decision on his or her own views,” and he is quite active in questioning attorneys to find the best answer.  In Bush v. Palm Beach County Canvassing Board (3:19), he asked Ted Olson nine questions in a row, and in a stern exchange in a flag burning case, Texas v. Johnson (6:51), Stevens pointedly responded to an advocate who claimed that the government cannot regulate how flags are displayed, saying “I feel quite differently.”

Jill Duffy and Elizabeth Lambert have argued that “oral dissents identify some of the Supreme Court justices’ most deeply held minority opinions,” and one such area of Justice Stevens’ jurisprudence, according to Jeff Toobin, is “his confidence in the ability of judges to resolve difficult issues” – a view supported by Stevens’ statement that “Congress expects the judges to help fill in the holes in statutes as it goes along.”  Knowing this, his disappointment in Scott v. Harris (16:45) is understandable: while speaking from the bench, he said “the district judge and all of the judges on the Court of Appeals all of whom are more familiar with driving conditions in Georgia than any of us, all concluded that the case raised a question that should be submitted to a jury rather than be decided by a group of elderly appellate judges.”

Stevens’ dissents are direct, and at times blunt, when one considers that the opinions he criticizes in these clips were authored by Justices sitting beside him.  He once criticized a majority opinion as the majority’s “attempt to justify its parsimonious construction of a very important statute” (Alexander v. Sandoval 7:58); in another case, he suggested that “the Court has stumbled badly today by reversing” a past precedent (Dolan v. City of Tigard 9:16); and he once claimed that “it is revolting to have no better reason for a rule of law than so it was laid down in the time of Henry IV.  It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past (Florida Prepaid v. College Savings Bank (10:17).”

Finally, this transcript includes clips from majority opinions that the SCOTUSblog team regards as Stevens’ most significant.  This includes audio from Hamdan v. Rumsfeld (17:26), in which Stevens suggested that “the admitted deviations from court-martial proceedings in this case are not justified by any evident impracticability.”  Other noteworthy cases include Kelo v. New London (20:09), in which the Court held that “New London’s effort to rejuvenate its economy through an integrated development plan qualifies as a public purpose”; Gonzales v. Raich (21:07), in which the Court affirmed that the “Supremacy Clause unambiguously provides that if there is any conflict between federal and state law, federal law shall prevail”; and McIntyre v. Ohio Elections Commission (27:15), in which the Court held “that the First Amendment recognizes an interest in anonymity.”