The Legacy of a Moderate

The following essay for our series on John Paul Stevens is by George Rutherglen, a law professor at the University of Virginia.  Rutherglen clerked for Justice Stevens during the Justice’s first Term on the Court, from 1975-76.

Much of the commentary celebrating the career of Justice Stevens has rightly emphasized his admirable personal characteristics: the warmth and geniality he showed to everyone he worked with, his willingness to listen and to entertain opposing views, the respect he showed to  lawyers and to his fellow judges.  All this has much to be said for it, but such a soft focus blurs the edges of his personality, his intelligence, and his contribution to the law.  He was demanding of himself and of his law clerks, competitive and insistent upon the highest standards, and willing to press an argument home against his adversaries.  Any number of attorneys can testify to the uneasy feeling that they had as Justice Stevens politely asked them a question in oral argument.  It could be about the logic of their position or the record in the case, but its ultimate import was always the same.  Framed in the most polite terms, it was, “Excuse me, counsel, could you tell me why this obvious point doesn’t cause you to lose your case?”

Anyone who doubts his intellectual toughness and his willingness to engage in sharp debate should just take a look at his dissents over the last ten years, from Bush v. Gore to Parents Involved and Citizens United.  My favorite nevertheless remains a one-line footnote from a case on personal jurisdiction, in which the Court divided over how far traditional notions of fair play and substantial justice actually embraced traditional procedures.  The procedure in that case, Burnham v. Superior Court (1990), was service of process on the defendant within the forum.  Two pluralities of four Justices each advanced independent rationales for the conclusion that in-state service met the requirements of the Due Process Clause, one as a matter purely of tradition and the other as a matter of minimum contacts.  Justice Stevens concurred in the judgment, but not in the theories advanced by each plurality, adding this observation: Perhaps the adage about hard cases making bad law should be revised to cover easy cases.

Before he was appointed to the bench, Justice Stevens was identified as a moderate Republican, an apt description certainly of his principal political supporters when he was nominated to the Seventh Circuit and then to the Supreme Court: Senator Charles Percy and President Gerald Ford.  The moderate wing of the Republican Party has since almost entirely disappeared.  To the extent that Justice Stevens represents its legacy in the judiciary, it comes as no surprise that he has been resourceful and combative.  No natural constituency automatically supports a moderate position, and certainly not in the current political climate in which we find ourselves, where extremist rhetoric often drowns out reasoned argument.  Perhaps second thoughts about this predicament have led so many people so recently to celebrate Justice Stevens’ career on the Court.

Often in that career, he was in the difficult position of fending off criticism on two fronts. This certainly describes his situation when he first took his seat on the Supreme Court, in October Term 1975 when I clerked for him.  Let me take one example from that term, a line from his concurring opinion in the well-known case of Washington v. Davis (1976), which held that the Constitution only prohibits intentional discrimination on the basis of race, as opposed to neutral practices with discriminatory effects.  Justice Stevens concurred in the opinion for the Court, but with the following qualification: that the line between discriminatory purpose and discriminatory impact is not nearly as bright and not quite as critical, as the reader of the Court’s opinion might assume.  This observation challenges the conventional distinction between claims of intentional discrimination and claims of discriminatory effects in constitutional law, sometimes denominated as the distinction between disparate treatment and disparate impact.  At a variety of different levels, this challenge strikes me as accurate, insightful, and profound.  Nominally identical claims of intentional discrimination nevertheless are, in fact, treated differently in different areas of the law, from employment, to voting, to housing, to religion, to free speech.  The precise definition of what constitutes intentional discrimination by an institutional defendant often proves to be elusive when reduced to the acts of its agents.  And, in any event, evidence of discriminatory effects often can be used to prove discriminatory intent.  The list could go on, and Justice Stevens touches on these problems in his brief opinion.  In it, he foreshadows the development of many details of legal doctrine in constitutional law and the law of discrimination generally.  In the space of a few pages, he says more about theories of discrimination than many volumes since written on the subject.

As was typical of opinions early in his career, this one left Justice Stevens squarely in the middle of a contentious issue: how far to extend strict scrutiny beyond intentional discrimination.  The conventionally labeled conservative wing of the Court would have left it at that; the conventionally liberal wing would have taken it further; Justice Stevens would have taken a more nuanced approach based on the facts and legal context of each case.  Much later in his career, he revisited this issue in statutory form in Smith v. City of Jackson (2005), which recognized claims of disparate impact under the Age Discrimination in Employment Act.  This opinion followed up on his view from Washington v. Davis, in particular in defining disparate impact under the ADEA in a form midway between intentional discrimination under the Constitution and disparate impact under Title VII.  To my mind, his opinion in Smith accurately captures the ambivalence surrounding claims of age discrimination: it involves stereotypes that can be debilitating to individuals as they grow ever older, but it does not involve the cumulative, lifelong effects, or the potential political isolation, of race or sex discrimination.

Perhaps I am wrong in this assessment of Smith and perhaps it represents nothing more than the fortunate convergence of a number of lines of argument in support of a moderate position on age discrimination.  If so, there is a broader and deeper question raised by Justice Stevens’ career.  It is whether a moderate position can remain influential on the Supreme Court as it become ever more difficult to find in our politics.  Median Justices can always be found, in the mathematical sense of finding a single Justice most likely to determine the result in a closely divided case.  Genuine moderates who seek a path between extremes not as a matter of expediency, or of temporary compromise, or of second-best decisions are harder to find.  They seek to reconcile the contradictory impulses and principles that can be found throughout American law.  The generality of the Supreme Court’s opinions exaggerate the tendency towards extremes.  Most of the time, the Court sits not to decide cases one by one, but instead to lay down general rules for the guidance of the many judges, lawyers, public officials, and citizens of every kind who must abide by its decisions.  It necessarily has to decide cases with a broad brush rather than a sharpened stylus, and in the process, principles and rules tend to take more general and approximate forms.  The widening circle of the law made by the Supreme Court loosens the hold of any centrist on its decisions.  Only a determined moderate can resist these centrifugal tendencies as, I think, Justice Stevens has done throughout his career.

In the few months before I came to work for Justice Stevens, I clerked for Justice Douglas, the last New Dealer on the Court, or for that matter, in public life.  I hope I did not subsequently clerk for the last genuine moderate to be found on the Court.