As the late Justice John Paul Stevens lies in repose in the Supreme Court’s Great Hall today, court-watchers continue to reflect on Stevens’ life in the law. At Stanford Law School’s Legal Aggregate blog, John Donohue suggests that Stevens “came to be defined in part by his sharply contrasting antagonist Antonin Scalia.” In an op-ed for The New York Times, Linda Greenhouse maintains that Stevens’ “approach to abortion cases, and the way that approach changed over the decades, exemplifies the kind of judge he was: attentive to facts, open to argument, impatient with intellectual shortcuts, persuaded that civility offered a more reliable route to success than invective.” Daniel Cotter discusses Stevens’ legacy in a WTAX podcast.
The battle over the Trump administration’s efforts to build a wall along the U.S. border with Mexico continued to unfold today. Last week the federal government asked the Supreme Court to put on hold a district court’s order that prohibited the government from using $2.5 billion in Pentagon funds for construction of the wall. This afternoon the Sierra Club and the Southern Borders Communities Coalition, which filed the challenge to the use of the funds for construction of the wall, pushed back, urging the justices to deny the government’s request.
In a 50-page brief filed shortly before 4 p.m. EDT, lawyers for the challengers told the justices that giving the government the relief it seeks would have the opposite effect from the general purpose of a stay, which is to maintain the status quo while the court considers the case. If a stay is granted and wall construction begins, the challengers warned ominously, “there will be no turning back.”
Paul Clement is a partner in the Washington, D.C., office of Kirkland & Ellis LLP. Clement served as the 43rd Solicitor General of the United States from June 2005 until June 2008.
In looking back at Justice John Paul Stevens’ remarkable life and tenure on the Supreme Court, there are many ways to try to capture his enduring contribution to the court and its jurisprudence. Perhaps the most obvious metric is to look to his many influential opinions for the court, of which there is no shortage. Every lawyer has a favorite, but there is no denying the importance of his opinions for the court in cases like Chevron U.S.A. v. Natural Resources Defense Council, Apprendi v. New Jersey and Clinton v. Jones.
As Justice John Paul Stevens prepared to read his farewell letter in 2010 he noted that when he joined the court in 1975 such a letter could well have been addressed “Dear Brethren,” but with two women on the court — likely to be joined by a third — he began with “Dear Colleagues.” (Art Lien)
Kenneth A. Manaster is Professor of Law, Emeritus at Santa Clara University and senior counsel at Pillsbury Winthrop Shaw Pittman LLP. He was associate counsel on the 1969 Special Commission of the Illinois Supreme Court with John Paul Stevens, who served as chief counsel. Manaster is the author of “Illinois Justice: The Scandal of 1969 and the Rise of John Paul Stevens” (University of Chicago Press, 2001) and an executive producer of “Unexpected Justice: The Rise of John Paul Stevens” (2015).
In the morning of July 16, 1969, the Apollo 11 rocket was launched to the moon. Millions of Americans watched the launch on television. Chicago attorney John Paul Stevens did not. The launch was broadcast there about 8:30 a.m. John’s inattention to the launch was not because he was asleep or uninterested. He had another commitment to meet. He had been up since 4 a.m., hard at work preparing to continue his cross-examination of a critical and daunting witness — the chief justice of the Illinois Supreme Court — in the investigative proceeding that turned out to be the catalyst for John’s elevation to the federal bench one year later.
Reactions to the death this week of retired Justice John Paul Stevens continue. For the ABA Journal, Mark Walsh reports that “[i]n the wake of Stevens’ death, admirers spoke of him as the last of a breed of nominees chosen based more on his legal acumen than on political calculations of how he might rule or whether he would please particular camps.” At The Atlantic, Garrett Epps writes of the influence on a young Stevens of “the arrest of his father … on charges that he and two other family members had embezzled funds to cover losses at their downtown-Chicago hotel”; Epps finds it “impossible to read [Stevens’] opinions without concluding that he had also learned some judicial empathy for those trapped in the system’s coils.” Andrew Cohen writes at the Brennan Center for Justice that, to Stevens’ “everlasting credit, his ability to recognize his errors and seek to rectify them became one of his many strengths.”
Justice Elena Kagan was at Georgetown University Law Center on Thursday afternoon for a conversation with the dean of the law center, William Treanor. With the recent passing of Justice John Paul Stevens, whose seat Kagan filled after Stevens retired, Kagan and Treanor began by discussing Stevens’ legal legacy and remarkable personal character.
Ian Heath Gershengorn is Chair of Jenner & Block’s Appellate and Supreme Court practice, and he served as Principal Deputy Solicitor General and as Acting Solicitor General in the Obama Administration; he was a law clerk to Justice John Paul Stevens in 1994-1995.
Justice Stevens was a brilliant justice and a wonderful boss. In thinking about how to convey who the justice was, I think first of his dissents, not for what they show of his jurisprudence — I leave that to others — but instead for what they show about the justice as a person. In those dissents, large and small, the justice revealed a bit of himself and what made him so special.
Let’s start small, with Supreme Court Rule 39.8. That rule allows the court to deny “in forma pauperis,” or IFP, status to frequent and abusive filers, forcing them to pay a filing fee for their petitions to be heard. The order lists from the court routinely contain boilerplate language directing the clerk not to accept the filings of a petitioner who has flooded the court with filing after filing. The court’s practice is reasonable and perfectly understandable. But Justice Stevens routinely dissented from those orders. He explained his reasoning in several dissents in the early 1990s, and I remember his making the same point with us in chambers. The burden on the Supreme Court, he thought, was trivial — the challenged petitions were denied routinely on the substance — but even a heavier burden would be far outweighed by the “shadow it casts on the great tradition of open access that [has] characterized the Court’s history.” For Justice Stevens, it was essential to make clear to “both the rich and the poor” that the court’s doors were always open.
Jeffrey L. Fisher is a professor of law at Stanford Law School and special counsel at O’Melveny & Myers; he served as a law clerk to Justice John Paul Stevens in 1998-99.
Much has been said in the past couple of days about Justice Stevens’ kindness, humility and generosity of spirit. All of it is true.
But perhaps not quite enough has yet been said about the justice’s integrity. Selecting a nominee in the wake of the Watergate scandal, President Gerald Ford was said to be guided by a single objective: to find the “finest legal mind” available. But the need to select a jurist who was above reproach must surely have been foremost in his thinking as well.
Justice Stevens on his 90th birthday (Art Lien)
Court-watchers offer their assessments of the late Justice John Paul Stevens’ legacy. At Education Week’s School Law Blog, Mark Walsh reports that “in dozens of education cases in his more than 34 years on the court,” Stevens “was a voice for student rights, racial equality, and a high wall of separation between church and state.” Ellen Gilmer focuses on Stevens’ ”robust environmental legacy that affects federal climate action and agency litigation to this day” at E&E News. At In Defense of Liberty, Timothy Sandefur remarks that Stevens’ “earlier years on the Court, his rulings were marked by a healthy skepticism toward the danger of overarching government.” Chris Geidner writes in an op-ed for The New York Times that in his dissenting opinions in Bowers v. Hardwick and Texas v. Johnson, Stevens recognized “the importance of seeking to understand others’ experiences and of understanding that our own experiences inevitably shape the way we see the world.” Additional analysis and commentary comes from James Hohmann for The Washington Post; Jane Schacter and Pamela Karlan at Stanford Law School’s Legal Aggregate blog, here and here; Deborah Pearlstein at TPM Café; and Richard Hasen at Slate, who maintains that Stevens’ controlling opinion for the court in Crawford v. Marion County Election Board upholding an Indiana voter-ID law now “looks like a brilliant tactical move that saved the country from a much worse decision that would have given a green light to restrictive voting laws across the country.”
The justices have released statements addressing the death of Justice John Paul Stevens. We reproduce the full texts of those remarks below the jump:
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