The following essay for our thirty-day series on John Paul Stevens is by Rodger D. Citron, an associate professor of law at Touro Law Center. He is a co-author of A Documentary Companion to Storming the Court and the author of a forthcoming law review article on Justice Stevens to be published in the University of Detroit Mercy Law Review. A shorter version of this essay appeared earlier in The National Law Journal.
When Justice John Paul Stevens announced that he would retire from the Supreme Court at the end of this Term, the news was accompanied by the inevitable counting of votes on the Supreme Court. The conventional wisdom is that Stevens’ retirement means the departure of the most senior liberal justice from the Court and that his successor would not substantially change the political orientation of the conservative Court currently led by Chief Justice John Roberts.
The focus on the political implications of Stevens’ retirement obscures a more significant aspect of his retirement: the loss of the Supreme Court’s preeminent common law lawyer. Since his appointment to the Court in 1975, Stevens has decided cases in the manner of the quintessential common law judge. He generally decides cases narrowly, with careful attention to the facts of the particular case and primary attention paid to the contentions of the litigants.
This approach is consistent with the common law notion that the law develops on a case-by-case basis over time. Furthermore, although Stevens does not shy away from exercising judicial power, he nevertheless employs it in moderation, deferring to other legal decision makers where appropriate.
No other justice is as committed to the common law approach as Stevens. On the right, Justices Antonin Scalia and Clarence Thomas are devout Originalists, committed to deciding cases in accordance with their views of what the framers of the Constitution intended. Chief Justice Roberts – usually joined by Justice Samuel Alito – tends to be an ideological conservative. Justice Anthony Kennedy often decides cases in sweeping terms, even when the result is liberal, as in Lawrence v. Texas (2003), which invalidated criminal laws outlawing homosexuality.
On the left, the distinctions are not as clear but are nevertheless evident. Justice Stephen Breyer often shares Stevens’ views but is willing to go one step further and decide the case in accordance with his views of the appropriate policy. Justice Ruth Bader Ginsburg shares Stevens’ attention to detail and nuance but tends to be more constrained about the exercise of judicial power. As for Justice Sonia Sotomayor, it’s too early to tell.
It is no coincidence that Stevens may be the last common law justice. He was nominated by President Gerald Ford because Ford sought to nominate a well-qualified lawyer rather than promote a particular judicial philosophy. As others have noted, Stevens is the last justice from the era that preceded the political litmus tests and intense ideological scrutiny of Supreme Court nominees that began under President Ronald Reagan and have only intensified since then.
Over the course of his thirty-five-year tenure on the Supreme Court, Stevens has written literally thousands of decisions. Inevitably an attempt to define the jurisprudence of one of the longest-serving justices will involve some oversimplification. With that disclaimer, I will briefly examine four decisions that I believe are representative of Stevens’ common law approach to judging.
The first is Stevens’ dissent in Scott v. Harris (2007), in which the Supreme Court reversed the lower courts’ decisions denying summary judgment to a sheriff’s deputy who stopped a fleeing car by ramming the car, causing it to crash and injuring the fleeing driver. By an eight-to-one decision, the Court decided that the civil suit against the deputy should not proceed because the deputy’s actions did not amount to excessive force.
What was notable in Scott was the Supreme Court’s reliance upon a videotape of the high-speed pursuit in deciding that the lawsuit should not go to trial. In his dissent, Stevens criticized the Court for acting as the jury in deciding that the injured driver’s version of the events was not credible. Stevens objected to the Court’s arrogating for itself the role of finder of fact – an intrusion even more noteworthy given the decisions of the trial court and the court of appeals below to deny summary judgment and allow the case to proceed to trial.
The second decision is Michigan v. Long (1983), in which the Supreme Court reversed a decision by the Michigan Supreme Court suppressing the contraband found by a police officer during a search of the passenger compartment of a car during a lawful investigatory stop. The Michigan Supreme Court cited both the U.S. Constitution and the Michigan Constitution in its decision. (Professor William D. Popkin discusses this case in his insightful Duke Law Journal article on Stevens published in 1989.)
Stevens dissented, not because of his views with respect to criminal procedure, but on the basis of the adequate and independent state ground doctrine. (Justice William Brennan, joined by Justice Thurgood Marshall, also dissented, contending that the Court improperly narrowed the Fourth Amendment’s protections against unreasonable searches and seizures.)
Under the adequate and independent state ground doctrine, the Supreme Court should refrain from reviewing state court decisions that rest on state law grounds, so long as the state ground is “adequate” to support the judgment and “independent” of federal law. Stevens argued that the Court’s decision in Long adopted the incorrect – and intrusive – presumption that “adequate state grounds are not independent unless it clearly appears otherwise” from the state court decision under review.
Essential to Stevens’ dissent was his belief that the Court should not review the Michigan Supreme Court’s decision “because the final outcome of the state processes offended no federal interest whatever.” As in Scott, Stevens believed that another legal decision maker was better suited to decide the case.
The third decision is Crawford v. Marion County (2008), in which Stevens wrote a decision upholding an Indiana law intended to prevent voter fraud by requiring voters to present government-issued photo identification. (The case was decided by a six-to-three vote; however, only two other Justices joined Stevens’ decision.) In what amounted to a middle-of-the-road decision, Stevens concluded that the plaintiffs challenging the law had not presented sufficient evidence that the law would unduly burden prospective voters. Thus his decision sustained the state law while also permitting a subsequent challenge to the law based upon further development of the facts.
The fourth and final decision is Stevens’ brief concurrence in Burnham v. Superior Court (1990). Burnham involved a straightforward issue. The Court was asked to decide whether in-state service of an individual established personal jurisdiction over that individual in that state. Precedent more than a century old indicated that the answer was yes because the state has judicial power over individuals within its boundaries.
However, because Burnham involved an interpretation of the Fourteenth Amendment’s Due Process Clause and was decided when the Court’s position on Roe v. Wade (1973) and the right to abortion appeared uncertain, the case turned into a duel between Scalia and Brennan over how to interpret the Constitution. Scalia argued that only the views of the framers of the Fourteenth Amendment were relevant, while Brennan contended that the issue before the Court could not be decided without reference to contemporary notions of fairness.
Stevens did not join either opinion because each was “unnecessarily broad” and instead wrote a separate one-paragraph concurrence upholding California’s exercise of personal jurisdiction over an individual served in state. Furthermore, by writing separately and not joining either decision, Stevens denied a fifth vote to both Scalia and Brennan. In doing so, Stevens prevented either decision from becoming controlling precedent in future cases – thereby limiting the reach of the Court’s decision.
Praising Stevens for being a common law judge necessarily raises the question of whether the common law approach is good for the Supreme Court. Scalia has argued that the Court, which hears relatively few cases given the thousands of certiorari petitions filed each Term, should decide cases according to clear, general rules that are in accord with the intentions of the framers of the Constitution. In Scalia’s view, a rule-based approach provides valuable guidance to lower courts and prevents cases from being decided on fact-based fairness grounds that may appear to be somewhat arbitrary.
Stevens’ response is that the Supreme Court and the nation are best served by narrow decisions that acknowledge the Court’s institutional limits and are grounded in the facts of the particular case. Like society, the law evolves. Indeed, as Stevens has written, “the vast open spaces in the text” of the Constitution “indicate that its authors implicitly delegated the power to fill those spaces to future generations of lawmakers.” By deciding cases in the manner of a common law judge, Stevens allows for other legal actors to play an active and appropriate role in the legal process.