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The Partisan of the Nonpartisan

Below is Pamela Karlan‘s essay on John Paul Stevens for our thirty-day series on the retiring Justice.  Karlan is the Kenneth and Harle Montgomery Professor of Public Interest Law at Stanford and co-director of the Supreme Court Litigation Clinic there.

Chicago has produced a number of astute political observers, among them Studs Terkel, Mike Royko, and, of course, Finley Peter Dunne’s Mr. Dooley.  Perhaps the best-known of Mr. Dooley’s comments involves the Supreme Court’s decision in Downes v. Bidwell, one of the “Insular Cases”:

“An’ there ye have th’ decision, Hinnissy, that’s shaken th’ intellicts iv th’ nation to their very foundations, or will if they thry to read it.  ‘T is all r-right.  Look it over some time.  ‘T is fine spoort if ye don’t care f’r checkers.  Some say it laves th’ flag up in th’ air an’ some say that’s where it laves th’ constitution.  Annyhow, something’s in th’ air.  But there’s wan thing I’m sure about.”

“What’s that?” asked Mr. Hennessy.

“That is,” said Mr. Dooley, “no matther whether th’ constitution follows th’ flag or not, th’ supreme coort follows th’ iliction returns.”

During this century, cases like Bush v. Gore and Citizens United mean that the Court shapes our elections almost as much as the elections shape the Court.  One particularly trenchant and perceptive observer and participant in this process is yet another Chicagoan, Justice John Paul Stevens.

Justice Stevens’ Chicago roots are not a fortuity.  They may well be a key to understanding many of his views on the law of democracy.  Chicago has long been a city of bare-knuckled partisanship dominated by machine politics and tainted by episodic outright irregularity.  So it is hardly surprising that a pervasive theme running through Justice Stevens’ jurisprudence is a commitment to nonpartisanship and clean elections.

In some important ways, Justice Stevens’ commitment to nonpartisanship is an offshoot of a more general feature of his jurisprudence: the “one Equal Protection Clause” perspective.  That perspective explains why, relative to the prevailing institutional positions of the Burger, Rehnquist, and Roberts Courts, Justice Stevens was both more open to claims of unconstitutional political gerrymandering and less open to claims of unconstitutional racial vote dilution or race-conscious gerrymandering.  (That was true, by the way, whether it was black plaintiffs challenging at-large elections in the South in City of Mobile v. Bolden (1980) or Rogers v. Lodge (1982), or white plaintiffs challenging the creation of majority-minority districts in the Shaw line of cases.)  In the end, he viewed all gerrymanders, regardless of the demographic characteristics that were used to allocate voters among districts, as essentially political, and thus properly subject to the same constraints.  At the same time, Justice Stevens also treated discrimination on the basis of politics as subject to the same constraints regardless of the form of state action involved.  If the state cannot “base a decision to hire, promote, transfer, recall, discharge, or retaliate against an employee, or to terminate a contract, on the individual’s partisan affiliation or speech” – as the Court held in a series of cases involving political patronage that the Justice enthusiastically joined – then it should follow that “political affiliation is not an appropriate standard for excluding voters from a congressional district” either.  For Justice Stevens, the “concept of equal justice under law” that “requires the State to govern impartially” applies with at least the same strength to the state’s decision on how to select its officials as to what those officials do once they are elected.

I have written elsewhere at length about many of Justice Stevens’ decisions involving the political process, and readers interested in more extensive discussion of his views on political gerrymandering or on race-conscious redistricting can check out The Partisan of Nonpartisanship: Justice Stevens and the Law of Democracy, 74 Fordham L. Rev. 2187 (2006), and Cousins’ Kin: Justice Stevens and Voting Rights, 27 Rutgers L.J. 521 (1996).  Here, I want to comment briefly on one of his later opinions – the one announcing the judgment of the Court in Crawford v. Marion County (2008).  (A brief disclosure: I helped to represent the petitioners.)  That decision upheld Indiana’s draconian voter ID requirement (which required presentation of a valid, federal- or Indiana-issued photographic identification document before a voter was entitled to have his ballot counted).  Many observers in the voting-rights community – including me – were disappointed by Justice Stevens’ decision to reject a facial challenge to the law’s constitutionality.  But in important ways, the Justice’s opinion for himself, the Chief Justice, and Justice Kennedy was consistent with his broader approach to political issues.

First, Justice Stevens has not been afraid to undergird his decisions with his own experience – whether it was learning to drive on narrow back roads (consider his dissent in Scott v. Harris (2007)), or surviving Prohibition (consider his dissents in Morse v. Frederick (2007) and Granholm v. Heald (2005)).  Illinois Republicans of Justice Stevens’ generation lived through, and could well have been scarred by, episodes such as the 1960 presidential election, where suspiciously late-reported Democratic votes in Chicago produced the margin of victory for John F. Kennedy.  Thus, although he acknowledged in Crawford that there was no hard evidence of in-person voter impersonation in Indiana, Justice Stevens was primed to believe in the existence of a risk of such fraud.

Second, across a variety of areas, Justice Stevens has been concerned as much with public confidence in the political process as with the presence of actual fraud or corruption.  This was long true in his approach to campaign-finance regulation, where he was prepared to uphold restrictions on political money not only where there was a risk of actual corruption, but also where he saw a plausible risk that public confidence in political honesty was at stake.  (Consider here Justice Souter’s opinion for the Court in Nixon v. Shrink Missouri Government PAC (2000), which Justice Stevens joined.)  Thus, in Crawford, Justice Stevens was prepared to treat a state’s interest “in protecting public confidence” as an “independent” factor justifying ID requirements, even beyond the risk of actual fraud.  In contrast to many of his colleagues – his more conservative colleagues who embraced the public confidence rationale in Crawford often downplayed the importance of public confidence in the system when it came to campaign finance regulations – Justice Stevens maintained a consistent position.  Moreover, Justice Stevens had a distinctive confidence in legislative solutions to electoral problems.  For example, although he tended to vote against plaintiffs in constitutional racial vote dilution cases, when it came to statutory claims under the Voting Rights Act, Justice Stevens regularly voted in favor of minority plaintiffs.

Finally, as we saw during the later years of his service on the Court, Justice Stevens was a masterful strategist, managing to preserve moderate results in the face of a sustained conservative revolution.  Justice Stevens’ opinion in Crawford carved a middle ground between the three dissenters’ view  – which I share – that Indiana’s voter ID law was invalid because it traded off the voting rights of real citizens against the unproven specter of potential fraud and the categorical view advanced by Justice Scalia (joined by Justices Thomas and Alito) that would essentially foreclose challenges to voter ID laws altogether.  By presenting an intermediate option to Justice Kennedy (who ultimately was joined by the Chief Justice as well), Justice Stevens’ opinion may have deprived the more conservative wing of the Court of the ability to achieve a majority.  Justice Stevens at least leaves in place the possibility that plaintiffs can challenge voter ID laws as applied to citizens who face distinctive hurdles in obtaining the required documents.

In the end, there’s something fitting about the fact that Justice John Paul Stevens – perhaps the last Justice nominated in a truly nonpartisan way – turned out to be such a champion of nonpartisanship during his time on the Court.  Even those of us who think the image of the judge as an umpire distorts more than it illuminates can celebrate his belief in impartiality, within the judiciary and the political branches as well.