|Oregon State Bar Bulletin — OCTOBER 2007|
By Jeff Bleich, Daniel Powell, Aimee Feinberg and Michelle Friedland
While each Supreme Court justice has just one vote, some justices’ votes tend to count more than others. This past term, that principle was especially evident, when Justice O’Connor’s replacement with Justice Alito resulted in the Court overruling or substantially rolling back precedents in the areas of affirmative action, abortion rights and other contentious issues. Now with the majority support for Roe v. Wade potentially whittled down to a single vote, renewed attention has focused on the oldest member of that majority — Justice John Paul Stevens. This is not the first time that Justice Stevens’ single vote has captured Court-watchers’ attention. During the 2006 mid-term election, progressive groups warned that the risk that Justice Stevens might be replaced made a Democratic victory in the Senate critical. Conservative groups went one better and circulated an "October surprise" rumor that Justice Stevens was in fact gravely ill and that Republicans must continue to control the Senate to ensure that he’d be replaced by a reliable conservative. That false rumor was only the latest in a number of election rumors that have swirled around Justice Stevens. As far back as October 1994, conservative groups circulated "predictions" that Justice Stevens was about to retire as a way to fuel the (ultimately successful) effort by Republicans to re-gain control of the Senate.
Justice Stevens’ 31-year odyssey from being a relatively apolitical Republican appointee from the Midwest to the so-called leader of the Supreme Court’s "liberal" wing and the target of the conservative right is a study in many things: the influence that a single, independent-minded jurist can have on the Court; the popular impulse to simplify and caricature the complicated jurisprudence of a justice; and the Supreme Court’s own shifting jurisprudence.
In many ways, Justice Stevens’ approach to decision-making is misunderstood. It is not "liberal" so much as it is merely less conservative than that of President Bush’s recent appointments. Indeed, in a recent interview, Stevens stated that he considered himself to be a conservative. Whatever the label, his brand of analysis is independent and hard to categorize politically. From his background, to his jurisprudence, to the way his chambers are run, Justice Stevens has been comfortable going his own way. Although he is often lumped together with Justices Souter, Ginsburg and Breyer as the "Fab Four," his jurisprudence often differs with these colleagues as to why he disagrees with the conservative majority. What is more, his reasoning has led him to command a majority on many of the most important issues of our time, even when the Court seemed stacked in a different direction.
Stevens the Maverick: Charting His Own Course
Part of the reason the right so openly hopes for Justice Stevens to vacate his seat on the bench is because he was supposed to be a reliable right-leaning judge when he was appointed. Justice Stevens was appointed by Republican President Gerald Ford. He was presented as a moderate conservative influence during a period in which the Court was at the center of national attention, having just invalidated the death penalty. As expected, Justice Stevens voted to reinstate the death penalty soon after taking his seat on the Court, but he insisted that the Constitution imposes limits on its use, and he has continued to question the fairness of state capital procedures. In addition to his published opinions urging the Court to limit the death penalty’s application, Justice Stevens has regularly filed a sole dissent in the denial of an application for an emergency stay of execution. Moreover, a few years ago in a recent speech to the American Bar Association, Justice Stevens expressed serious doubts about the fairness and accuracy of the death penalty as applied.1
In other areas Justice Stevens frequently demonstrates a penchant for sole concurrences and dissents. For example, in Ashcroft v. ACLU, he wrote a concurrence in a case invalidating portions of a federal Internet pornography ban. Stevens alone drew a fine distinction between the risks associated with materials disseminated by radio — which come at the consumer without warning — and web-based content, which must be specifically accessed and which can be filtered. Similarly, in City of Boerne v. Flores, Stevens filed a bold concurrence that, in his view, the Religious Freedom Restoration Act was an unconstitutional establishment of religion. That opinion went much further than the majority’s narrower holding that Congress lacked the power to pass the act under Section 5 of the 14th Amendment.
Justice Stevens’ independence is also reflected in his procedures for deciding cases. Justice Stevens is now the only member of the Court who does not participate in the so-called "cert pool." All of the other justices share the burden of reviewing cert petitions by having a single law clerk for just one justice prepare a memorandum that is sent to all of them. Justice Stevens, however, has his clerks review each and every petition, applying his own criteria for whether a petition should be granted. Likewise, rather than having his clerks do a first draft of opinions, Justice Stevens pens the first draft of each one of his opinions, whether it be a majority, concurrence or dissent. Depending upon the case, his writings can line up with liberals, libertarians, conservatives or no one else.
Stevens the Liberal: A Consistent Commitment to Civil Rights
The perception of Justice Stevens as a leader of the Fab Four (and the target of the right) is probably most due to his defense of civil rights and civil liberties. This however was a hallmark of his thinking even before he joined the bench. As a law clerk to Justice Rutledge in the 1947 term, Justice Stevens urged Justice Rutledge to vote to invalidate segregation in education, arguing that "the doctrine of segregation is itself a violation of the Constitutional requirement," a full six years before Brown v. Board of Education.2 Having an expansive view of the liberties protected by substantive due process, Justice Stevens also was early to conclude that the Constitution protects the rights of gay men and lesbians, dissenting in Bowers v. Hardwick, in which a majority of the Court held that there was no constitutional right of gay men and lesbians to engage in sexual relations with the partner of their choice. In 1986, well before gay rights became a popular liberal cause, Justice Stevens wrote in dissent: "The essential ‘liberty’ that animated the development of the law in cases like Griswold, Eisenstadt, and Carey surely embraces the right to engage in non-reproductive sexual conduct that others may consider offensive or immoral." His views were finally vindicated almost 20 years later in Lawrence v. Texas, in which Justice Kennedy, writing for the Court, concluded "Justice Stevens’ analysis, in our view, should have been controlling in Bowers and should control here."
And in the 2003 term, Justice Stevens convinced the Court to at last adopt views he had first espoused as a law clerk more than 50 years earlier. In 1948, in Ahrens v. Clark, the Supreme Court held that district courts could only grant writs of habeas corpus to individuals within their territorial jurisdiction. Hence, the district court for the District of Columbia could not order the attorney general to release individuals being held on Ellis Island awaiting deportation to Germany. Stevens, who was clerking for Justice Rutledge and heavily influenced by his views, wrote a bench memorandum recommending that the Supreme Court rule the other way, and drafted a dissent from which Justice Rutledge borrowed heavily in drafting his opinion. Justice Stevens finally got his way 56 years later in his opinion for the Court in Rasul v. Bush, in which the Court concluded that the district court for the District of Columbia had jurisdiction over the habeas petitions filed by foreign nationals being held at Guantanamo Bay. Justice Stevens even cited to the dissent he had helped author all those years before.
In the area of equal protection, Justice Stevens has forged his own approach to evaluating the constitutionality of laws that distinguish among groups based upon immutable characteristics. Rather than apply the three-tiered system of strict scrutiny, intermediate scrutiny or rational basis, Stevens has famously declared, "There is only one Equal Protection Clause. It requires every State to govern impartially. It does not direct the courts to apply one standard of review in some cases and a different standard in other cases." Stevens’ approach thus discourages drawing distinctions among different groups, which helps explain why he would be a liberal leader from the perspective of gay rights groups, but inconsistent in his support of affirmative action programs. His view that there is but one standard for equal protection may also clarify why groups such as the National Organization of Women opposed his nomination 31 years ago, but now recognize that the "Stevens standard" has proven to be very sensitive to claims of discrimination as the role of women in society has changed. His law clerk hiring too has ensured that his chambers reflect the increasing number of women entering the legal field, and evolving notions of gender parity.
Stevens the Libertarian: Protecting the Right to Privacy
Justice Stevens’ opinions regarding substantive due process and the right to privacy take on a more libertarian bent. His jurisprudence in this area tends to focus on the extent to which individuals have ordered their lives around personal or intimate decisions in which the government has historically had little involvement. His concurrence in Washington v. Glucksberg, for example, in which the Court refused to invalidate on its face a law prohibiting physician-assisted suicide, focused principally on the impact of the decision on individuals. According to Justice Stevens, "[t]his freedom embraces, not merely a person’s right to refuse a particular kind of unwanted treatment, but also her interest in dignity, and in determining the character of the memories that will survive long after her death." The opinion reflected a belief that abstract legal principles should not cloud the question of whether the government is ultimately intruding into the private ordering of people’s lives. There, he stood comfortably, if alone, in championing the right of people to make such fundamental decisions for themselves.
Stevens the Conservative: Flags and Felons
Perhaps reflecting his background as a Republican appointee with a military background, Justice Stevens’ jurisprudence shows a conservative streak as well. In Texas v. Johnson, he dissented along with Chief Justice Rehnquist and Justices White and O’Connor in concluding that flag burning is not protected by the First Amendment. The American flag, he wrote, "is more than a proud symbol of the courage, the determination, and the gifts of nature that transformed 13 fledgling Colonies into a world power. It is a symbol of freedom, of equal opportunity, of religious tolerance, and of goodwill for other peoples who share our aspirations." His experience as a moderate Republican who often sides with both liberals and conservatives may also help to explain many of his seemingly conflicting election decisions. For example, in Clingman v. Beaver, he concluded that the First Amendment’s protection of the freedom of association required Oklahoma to allow the Libertarian party to open its primaries to registered Democrats or Republicans, while in California Democratic Party v. Jones, he concluded that California’s open primary, which forced political parties to associate with members of other parties, did not violate the First Amendment.
Justice Stevens’ Fourth Amendment opinions are often less protective of defendants’ rights than other justices in the Fab Four. In Kyllo v. United States, for instance, Justice Stevens argued that the police acted consistently with the Fourth Amendment when they used a thermal imaging device to determine if a homeowner was growing marijuana. More recently in Illinois v. Caballes, over the dissent of Justices Ginsburg and Souter, Justice Stevens authored the majority opinion concluding that using a drug-sniffing dog at a routine traffic stop without a warrant did not violate the Constitution, further defying conventional wisdom that he is a predictably "liberal" justice.
Stevens the Statesman
Perhaps most striking about Justice Stevens’ position on the Court is that despite his habit of striking out on his own, he has demonstrated great skill at assembling a majority in close cases. As the most senior associate justice, Stevens enjoys the authority to assign the majority opinion whenever he, but not the chief justice, is in the majority. Court-watchers have noted that part of the reason he has been so effective in "leading" the Court may be his apparent willingness to give the opinion-writing responsibility to a "swing" vote in close cases — and knowing when he can safely keep the opinion for himself. By asking a justice to write a majority opinion, he can be sure that the end result will be something that that justice is comfortable with, rather than risk alienating him or her by drafting an opinion that might go too far. For example, Justice Kennedy received the writing assignment in Lawrence, just as Justice O’Connor wrote the opinion in the decision affirming the use of affirmative action, Grutter v. Bollinger. Justice Stevens has also proved adept at creating non-traditional majorities. The primary example of this is in Apprendi v. New Jersey, in which Justices Stevens, Scalia, Souter, Thomas and Ginsburg together held that the government must prove to a jury each element of a crime necessary to the sentence beyond a reasonable doubt. Apprendi, of course, is another instance in which Justice Stevens turned his sole dissent (Walton v. Arizona) into the law of the land.
In addition to mastering the art of assignment, Justice Stevens also displays the oft-forgotten quality of being nice. One only has to attend oral argument to witness Justice Stevens gently interrupt an attorney with, "May I ask a question?" His humor and grace are also regularly on display in his frequent defense of his colleagues in concurring opinions. In Roper v. Simmons, in which the Court struck down the death penalty for juvenile offenders, for instance, Stevens wrote in response to a blistering dissent by Justice Scalia: "If great lawyers of his day — Alexander Hamilton, for example — were sitting with us today, I would expect them to join Justice Kennedy’s opinion for the Court. In all events, I do so without hesitation." Similarly, in Planned Parenthood of Southeastern Pennsylvania v. Casey, Justice Stevens, while disagreeing with parts of the plurality opinion of Justices O’Connor, Kennedy and Souter, nevertheless went out of his way to stress the parts where he agreed with their analysis, starting his opinion with the observation that the "portions of the Court’s opinion that I have joined are more important than those with which I disagree" — a line refreshing in its graciousness.
As the Court’s oldest member, Justice Stevens may be a lightning rod for speculation about his replacement on that basis alone. But it seems that the real reason for Justice Stevens’ primacy in political debates about the Court is that he has remained apolitical and independent — and that may be what scares and excites those who favor ideology the most.
1. "Chapman & Cutler Axes 17 Firm Staff," Chicago Daily Law Bulletin, March 22, 1995.
2. Lisa G. Lerman, Blue-Chip Bilking: Regulation of Billing and Expense Fraud by Lawyers, 12 Geo. J. Ethics 205 (1999); see Bill Padding Happens, Legal Times, Oct. 18, 2004.
ABOUT THE AUTHOR
The authors are litigators at Munger, Tolles & Olson in San Francisco, and all previously clerked at the U.S. Supreme Court. Jeff Bleich is the newly elected president of the State Bar of California. He clerked for the late Chief Justice William H. Rehnquist in the 1990 term and lectures on constitutional law at the University of California, Berkeley, Boalt Hall School of Law. Michelle Friedland clerked for Justice Sandra Day O’Connor in the 2001 term and has taught federal jurisdiction at Stanford Law School. Dan Powell clerked for Justice John Paul Stevens and Aimee Feinberg clerked for Justice Stephen Breyer in the 2004 term
© 2007 Jeff Bleich, Daniel Powell, Aimee Feinberg and Michelle Friedland