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Justice Stevens’ path from centrist to liberal

The following essay for our thirty-day series on John Paul Stevens is by Norman Dorsen, the Stokes Professor of Law and Counselor to the President at New York University.  Professor Dorsen has written extensively on Justice Stevens’ jurisprudence.  He was president of the American Civil Liberties Union from 1976-1991.

The public response to the announcement that Justice John Paul Stevens would retire at the end of this Term at age ninety accurately reflects the high esteem in which he is held by all except a small fringe.  Only Justice Holmes served on the Court at a greater age.   In recent years the media, for good reason, have regularly described Stevens as leader of the liberal bloc on the Court.

In that capacity, he has written, for example, on racial and gender discrimination, religious freedom, privacy, procedural and substantive due process, copyright, national security, and free expression.  Stevens’ powerful and exacting mind has produced work that will last.

My favorite majority opinions of his are Wallace v. Jaffree (invalidating an Alabama moment-of-silence law that was in fact designed to avoid Supreme Court bans on organized prayer in schools), Apprendi v. New Jersey (requiring a jury verdict before a criminal sentence may be increased), and Massachusetts v. EPA (recognizing the agency’s authority to regulate greenhouse gases); his concurrence in Planned Parenthood v. Casey (not only supporting Roe v. Wade, but maintaining that state-imposed twenty-four-hour waiting periods and biased counseling before a woman can have an abortion were invalid); and his dissents in Bowers v. Hardwick (from the decision upholding as valid criminal sodomy laws imposed on homosexuals, overruled in 2003 in Lawrence v. Texas) and Citizens United v. Federal Election Commission (from the decision that invalidated a law, previously upheld, that restricted corporate funding of election campaigns).

It was not always thus.   In earlier years, along with Stevens’ many progressive rulings, he frequently was at odds with liberal orthodoxy.  For example, he famously dissented from the decision invalidating flag desecration laws on First Amendment grounds, at least twice he voted to uphold censorship of “indecent” radio broadcasts, and he voted to sustain the constitutionality of the death penalty.   In addition, he voted in University of California v. Bakke to strike down a racial “affirmative action” program; nor did he join Justice Powell’s decisive and more flexible opinion in that case that reached the same result but permitted universities to consider race as one factor in their admissions policy.   There are other examples, although in some instances Stevens later revised his position.

From one standpoint, the more conservative rulings should not be surprising. Stevens was appointed as a moderate, nominated by a Republican president and championed by a Republican attorney general, and for many years he worked at business-oriented law firms.   Of course, Republicans were different in those days (e.g., more Republican than Democratic senators voted for the Civil Rights Act of 1964).   Nevertheless, the question remains, what explains the path of John Paul Stevens’ jurisprudence from essentially centrist to leader of the liberal faction of the Supreme Court?  The inquiry invites inspection of his personal history.

Sometimes there is an apparently direct connection between biography and decision.  For example, Stevens’ vote to uphold the validity of flag desecration cases in the face of strong First Amendment arguments accepted by, among others, Justices Scalia and Kennedy, seems traceable to his military service “under the flag” in World War II.   But such direct relationships are rare; one must look further to explain Stevens’ trajectory.

One possibility is Stevens’ clerkship at the Supreme Court in 1947-1948 with Justice Wiley Rutledge, a liberal academic appointed in 1943 by President Franklin Roosevelt.    Rutledge believed in allowing “wide discretion to judges, to juries, and to administrative agencies,” he “had great faith in wisdom born of experience,” he had a “critical attitude towards the logical application of rules,” he had great respect for “practical considerations,” and he was courageous in going against the grain in controversial cases.   A greater similarity to Justice Stevens’ approach to judging would be hard to find.   There are even similarities in their work habits. Like Rutledge in the past, Stevens drafts almost all of his opinions; he shows deep concern for procedural regularity to avoid having to decide hypothetical issues; and far more than most justices he writes separately to develop a personal theme.   This coincidence of judicial approach was foreshadowed by Rutledge’s comment not long before he died that Stevens “turned out to be one of my best clerks.”

However great his debt to Rutledge, it cannot fully explain Stevens’ opinions, the earliest of which was written almost thirty years after his clerkship in a very different world.  One must consider other possibilities.

Following his clerkship with Justice Rutledge, Stevens practiced law for many years.   He often has said that this experience made him into the seasoned lawyer and judge that he became because he learned to focus sharply on facts, to avoid overly broad and especially premature judgments about the law, and to observe directly the emotional as well as financial impact of litigation on clients.  In this respect, Stevens follows a line of prominent practitioners who became outstanding justices:  Louis Brandeis, Robert Jackson, John Marshall Harlan and Lewis Powell.   Their distant fingerprints may be perceived on many of Stevens’ opinions.   And according to his former law clerk, Professor Eduardo Penalver, Stevens took particular pride in receiving an award from the bar association of Poulsbo, Washington, as “Small Town Lawyer of the Year.”   While it may be doubted that Stevens ever was a “small town lawyer” in the way that, for example, Justice Jackson was, his pride upon being so recognized is instructive as to the kind of man he is.

There is, it seems to me, another important element.   Stevens was born into a privileged family and had an outstanding education, much as did Justices Harlan and Powell.   On a behavioral level, this helps to explain Stevens’ courtliness and kindliness, similar to the well-known graciousness of Harlan and Powell.   Substantively, it may undergird Stevens’ willingness to change his mind on important issues, as Harlan and Powell did.   It is also part of the reason, I think, for his strong and elegant support for strict separation of church and state in opposition to a triumphalist version of Christianity.  And it perhaps provided the inner strength, admittedly shared not only by Harlan and Powell but by justices of non-elite backgrounds such as Frankfurter and Rehnquist, to write many separate opinions and to continue doing so even when their reception by other justices was cool.

There are two final explanations for Justice Stevens’ pathway from moderate to leading liberal, both stemming from his own words.   In one version, when a law clerk asked him why he had changed, his response was that he had not changed at all; the Court had.

Elsewhere he is quoted as saying that “learning on the job is essential to judging.”   These explanations, at least in one reading, are not wholly consistent, yet both are plausible descriptions of what happened to Justice Stevens over his thirty-four years on the bench.   The Court had changed, as it always has, and “learning on the job” no doubt contributed to Stevens’ development as a judge.   Of course, changes in the Court do not always lead justices to new approaches on constitutional issues.   And “learning on the job” sometimes merely enables justices to find new and more sophisticated ways to support their earlier opinions.

Despite all the writing and rumination that has greeted the retirement of this excellent man and excellent judge, there is more to understand and will be for some time.

*Note: Thanks to my colleague, Troy McKenzie, a former law clerk to Justice Stevens, for helpful comments on a draft.