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The clerkship of John Paul Stevens with Justice Wiley Rutledge

The following essay on John Paul Stevens for our thirty-day series is by John M. Ferren, senior judge on the District of Columbia Court of Appeals.  Judge Ferren has written a biography of former Justice Rutledge, Salt of the Earth, Conscience of the Court: The Story of Justice Wiley Rutledge (2004).

Several years ago, Justice John Paul Stevens reminisced in the Northwestern University Law Review that he had achieved his clerkship with Justice Wiley Rutledge by a coin flip.  For the 1947 Term, Congress had appropriated funds for Justices to hire a second law clerk. Rutledge had an immediate opening while Chief Justice Fred Vinson had one available for 1948.  So Northwestern professors W. Willard Wirtz and Willard Pedrick arranged for Stevens and his co-editor-in-chief of the Law Review, Arthur R. Seder, Jr., to toss a coin. The winner would join Rutledge. (The loser, it turned out, would clerk for the Chief a year later.)  Stevens won, and happily so for both him and his new boss.

Willard Wirtz had been Dean Rutledge’s first College of Law hire at Iowa in 1937, beginning a close friendship.  Wirtz had moved on to Northwestern in 1939 when Rutledge joined the U.S. Court of Appeals for the District of Columbia.  FDR named Rutledge to the high Court in 1943, and the new Justice maintained regular contact with Wirtz. It was in the normal course of their friendship, therefore, that in May 1947, as Professor John Q. Barrett recently noted, Wirtz wrote the Justice about “John Stevens, one of our prospective graduates.”  Continued Wirtz: “I consider Stevens to be one of the two most outstanding students whom I have ever worked with. . . . Stevens has the quickest, and at the same time best balanced, mind I have ever seen at work in a classroom. . . . The man is just as solid as he is brilliant.  Beyond all this he has a personality which makes it a pure delight to work with him.  I suppose that he is undoubtedly the most admired and . . . best liked man in school.”

Wirtz was prophetic.  Justice Rutledge told others that Stevens had been “one of my best clerks” and wished that he had been able to persuade Stevens to stay another year.  John Stevens, however, having served in the Navy from the day before Pearl Harbor, was eager to begin law practice in Chicago.  He thus moved on, but the clerkship had affected him positively – and profoundly.

When I began work on my biography of Justice Rutledge, Justice Stevens consented to an interview, from which there were follow-ups in person, in writing, and on the phone – and at a book launch he hosted at the Court.  These kindnesses reflected his affection and respect for the Justice whose story he was eager to have told.  When I walked along the first-floor corridor of the Court looking for the Rutledge portrait among those of the 1940s Justices, I could not find it – until I came upon it in Justice Stevens’ chambers.  Looking at the portrait, he said: “I did feel quite close to him. . . . He had a great influence on me; I think about him a great deal.”

Wiley Rutledge, the Kentucky-born son of a Baptist preacher, was twice runner-up when Justice Felix Frankfurter, then Justice William O. Douglas, took their seats on the Court replacing the renowned Cardozo and Brandeis. A Colorado law school graduate and professor, Rutledge had been dean of the law school at Washington University in St. Louis before coming to Iowa, and he succeeded Justice James Byrnes when Justice Frankfurter failed to convince President Roosevelt to name Judge Learned Hand instead.  With Justice Frank Murphy, Wiley Rutledge took a more expansive view of civil liberties than those of two other liberal justices on the Court during the 1940s, Douglas and Hugo Black.

Before the Stevens clerkship, Justice Rutledge had established himself as a strong supporter of First Amendment rights, both speech and religion.  And he not only had joined Justice Black’s dissent in Adamson v. California, finding the Bill of Rights fully incorporated in the Fourteenth Amendment, but also had joined Justice Murphy’s dissent opining that the Fourteenth Amendment may embrace rights not included in the original ten (eventually, of course, the right to privacy).  Rutledge is best known, however, for his towering dissent in In re Yamashita.  A military commission had found the Japanese general in charge of the Philippines near the war’s end legally responsible for the atrocities committed there by troops nominally (but not practically) under his command.  The Court denied the general’s habeas petition and effectively approved his death by hanging.  Justice Rutledge dissented, along with Justice Murphy, claiming violations of the Articles of War, the Geneva Convention, and Fifth Amendment Due Process.  (Perhaps Rutledge’s passion here in part reflected his angst in joining the 6-3 majority sustaining evacuation of the Japanese and Japanese-Americans from the West Coast in Korematsu v. United States.)

Like his colleagues (except for Vinson and Murphy), Justice Rutledge wrote his own opinions, including the statement of facts; typically only a paragraph or two from a clerk’s cert. memo or occasional draft opinion would survive verbatim.  The clerk’s principal written contribution would be the footnotes.  Justice Stevens recalled a common notation on a Rutledge draft: “J.P.S. get cites.”  According to Stevens, “Sometimes they weren’t so easy to prove.”

On the other hand, John Stevens supplied significant material for Rutledge, as in the Ahrens v. Clark dissent rejecting the majority’s restrictive view limiting federal habeas jurisdiction to the district in which the prisoner was held.  Traditionally, the Court had jurisdiction where an official with custodial power could be found, for what if counsel does not know where the prisoner is located?  Or what if a prisoner (such as a terrorist suspect today) is held outside a federal district but the official responsible for custody is within reach of a federal judge?  In his analysis for the Ahrens dissent, Stevens proffered an approach granting a federal judge substantial leeway to find habeas jurisdiction when the prisoner is not confined in the judge’s district – leeway greater than Rutledge and Black had agreed upon after the Court’s conference.  Rutledge was persuaded by Stevens’ suggestion, and Black (as well as Murphy) joined.  As Professor Joseph Thai has elaborated so well, Justice Stevens himself later relied on this dissent in writing the Court’s opinion in Rasul granting statutory habeas rights to Guantanamo Bay detainees.  The Court’s next Guantanamo habeas case challenged trial by military commission.  In Hamdan, Justice Stevens held that the commission structure and procedures violated the Uniform Code of Military Justice and the Geneva Conventions, reflecting the dissent of Justice Rutledge in Yamashita.

John Stevens’ law clerk prose figured prominently in another significant case.  For years, the Supreme Court had refused to grant cert petitions to review convictions of Illinois prisoners who had failed to exhaust state remedies under a byzantine system that even counsel, not only the indigent filing pro se, found virtually impossible to understand.  In Marino v. Ragen, incorporating paragraphs written by Stevens, Rutledge concurred separately to urge his colleagues to ignore petitioners’ failure to exhaust the Illinois “merry-go-round” (Stevens’ expression) of appellate remedies until the legislature simplified state procedure. Two years later, the Court followed Rutledge’s recommendation, and soon thereafter Governor Adlai Stevenson signed into law an uncomplicated post-trial remedy.

The Stevens clerkship with Justice Rutledge is the subject of outstanding essays showing how their relationship influenced the eventual jurisprudence of Justice Stevens and the Stevens work style.  The jurisprudential connection is well covered by, among others, professors Laura Krugman Ray, Craig Green, and Diane Marie Amann, as well as by Professor Thai.  As to stylistic comparisons, three discussed by Professor Ray are of particular interest.  First, reflecting 1940s practice and Justice Rutledge’s concern not to overlook a “certworthy” case, Justice Stevens has kept review of every cert petition in chambers rather than relying, as the other Justices have done since 1972, on a memorandum by a clerk from the “cert pool” composed of clerks from the other chambers.  (Justice Samuel Alito reportedly has adopted the Stevens approach.)

Also like Rutledge’s usual practice, Justice Stevens himself, not a clerk, has initiated the first draft of his opinions (a practice not typical of Stevens’ colleagues).  Stevens could have been quoting his mentor when he said not long ago, “I don’t really understand a case until I write it out.”  This practice may account for the fact that Justice Stevens has employed fewer clerks than his colleagues do.  As to opinion style, Stevens has tended for the most part to write shorter expositions in simpler sentences than Rutledge wrote – perhaps a lesson learned from a clerkship with a Justice who was inclined to prolixity.  On the other hand, Stevens, like Rutledge, has shown an affection for footnotes — a place where scholarly perfection can be evidenced.

Finally, reflecting another Rutledge characteristic, Justice Stevens has often shown independence by writing separate opinions not only in dissent but also in concurrence, offering rationales that differ from his colleagues’ in the majority.  Rutledge believed that a Justice is obliged to share individual insights when a majority takes an approach that the Justice finds unconvincing, even when that Justice has joined the majority disposition.  Justice Stevens appears to agree; on occasion, intellectual integrity – reflecting a unique rationale that may prevail someday — takes precedence over pressure for the widest possible agreement.

Two Justices, Rutledge and Stevens, have long been bound together by a strong personal relationship, by great caring about their fellow human beings, and by deep reverence for the law.  Justice Stevens has called Wiley Rutledge a “servant of the law.”  Justice John Paul Stevens, too, has been that good and faithful servant.