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The Dissenter
The last Supreme Court term, which ended in June, was the stormiest in recent memory, with more 5-to-4 decisions split along ideological lines than at any time in the court’s history. In a series of controversial cases about abortion, racial integration in schools, faith-based programs and the death penalty, the court’s four more conservative justices prevailed, with Justice
Not long after beginning his tenure as chief justice in 2005, John G. Roberts Jr. announced publicly that he would try to promote unanimity and collegiality on the court. During his first months on the job, the court managed to achieve his goal, issuing a series of 9-to-0 opinions. But this past term, the court’s first full one with Justice Samuel A. Alito Jr., the brief period of harmony abruptly ended: the percentage of 5-to-4 decisions in which the four liberals were together in dissent rose to 80 percent, up from 55 percent in the 2004 term. For the foreseeable future, the court seems likely to be polarized, with the conservative bloc ascendant and the liberal bloc embattled.
Justice Stevens, the oldest and arguably most liberal justice, now finds himself the leader of the opposition. Vigorous and sharp at 87, he has served on the court for 32 years, approaching the record set by his predecessor, William O. Douglas, who served for 36. In criminal-law and death-penalty cases, Stevens has voted against the government and in favor of the individual more frequently than any other sitting justice. He files more dissents and separate opinions than any of his colleagues. He is the court’s most outspoken defender of the need for judicial oversight of executive power. And in recent years, he has written majority opinions in two of the most important cases ruling against the Bush administration’s treatment of suspected enemy combatants in the war on terror — an issue the court will revisit this term, which begins Oct. 1, when it hears appeals by Guantánamo detainees challenging their lack of access to federal courts.
Stevens, however, is an improbable liberal icon. “I don’t think of myself as a liberal at all,” he told me during a recent interview in his chambers, laughing and shaking his head. “I think as part of my general politics, I’m pretty darn conservative.” Stevens said that his views haven’t changed since 1975, when as a moderate Republican he was appointed by President Gerald Ford to the Supreme Court. Stevens’s judicial hero is Potter Stewart, the Republican centrist, whom Stevens has said he admires more than all of the other justices with whom he has served. He considers himself a “judicial conservative,” he said, and only appears liberal today because he has been surrounded by increasingly conservative colleagues. “Including myself,” he said, “every judge who’s been appointed to the court since Lewis Powell” — nominated by
As a result, Stevens is now in the unexpected position of shaping the court’s liberal jurisprudence. With the retirement of Justice Harry A. Blackmun in 1994, Stevens became the senior associate justice, a position second in authority only to the chief justice. When the chief justice is in the majority and Stevens is in the minority, Stevens decides who will write the principal dissent; when the roles are reversed, Stevens assigns the majority opinion. On the current court, in close cases, Stevens has wielded this power strategically, assiduously courting Kennedy to maximize the chances of winning five votes. In some instances, Stevens has assigned majority opinions to Kennedy to secure his vote; in others he has chosen to write majority opinions himself in ways that will persuade Kennedy to stay in the liberal camp.
If Stevens is shrewd in the majority, he is fierce in dissent. He was especially exercised last term by a case involving death-penalty jurors, which he described to me as “a tremendous change in the law” and which prompted him to criticize his conservative colleagues with extemporaneous comments from the bench. He also assigned several dissents last term to his usually mild-mannered liberal colleagues —
It may seem surprising that such a passionate leader of the court’s liberal wing bristles when he is called a liberal. But the fact that Stevens sees himself as a conservatively oriented centrist makes perfect sense given what judicial liberalism has become. There was a time, years ago in the Warren Court era, when liberal justices like Stevens’s predecessor William O. Douglas saw themselves as on a mission to recreate American society along boldly egalitarian lines by discovering newly minted constitutional rights. But for better or worse, this ambitious conception of judicial liberalism has been replaced, like much of political liberalism in America, by a more modest, conciliatory and technocratic sensibility. Even the most liberal justices today have little appetite for the old approach.
Judicial liberalism, in other words, has largely become a conservative project: an effort to preserve the legal status quo in the face of efforts by a younger generation of conservatives to uproot the precedents of the past 40 years. Stevens, who wrote or supported many of those precedents, understandably objects when he feels they are distorted or mischaracterized by justices who were in college when he was appointed to the court. At the same time, merely conserving the achievements of the past is less than what many liberals today ultimately hope for. Can Stevens provide a model for a new vision of legal liberalism in the 21st century?
On June 22, a week before the last term ended, I visited the Supreme Court for a conversation with Stevens. After greeting me cordially in his chambers, wearing a short-sleeved sport shirt and slacks, he motioned me toward a couch and relaxed in a nearby chair. He had a longstanding policy, he said, of not granting extended interviews; but he indicated he was now ready to talk publicly about his life and legacy, as well as the newly divided court.
I asked about the new chief justice, and Stevens compared him with his predecessor, William H. Rehnquist. He praised Roberts as “obviously very, very smart, a very, very nice guy; he’s got a wonderful sense of humor.” He continued, “He does a fine job of running the conference, as Bill Rehnquist did, although I’m not sure I’m going to agree with him any more than I agreed with Bill Rehnquist.” I asked whether Roberts would succeed in his stated goal of persuading his colleagues to issue narrow, unanimous opinions. “I don’t think so,” Stevens replied. “I just think it takes nine people to do that.” He noted that Roberts had “a bit of a honeymoon period” during his first term. “I think maybe the first few months we all leaned over backward to try to avoid writing separately in a couple of opinions,” he said, “but I don’t think that will last.”
In general, Stevens said, the idea that a justice can sway his colleagues through collegiality and personal lobbying — a talent often attributed to Justice William J. Brennan Jr. — is exaggerated. He suggested that in most cases, justices cannot be swayed to change their votes once they make up their minds, and when they can be swayed, it is only as a result of legal arguments, not charm or charisma. “I was very fond of Bill Brennan — loved the guy and had great admiration for him,” Stevens said. “But it’s simply not right to say that he was able to craft the majority. He just had five votes on his side!”
Stevens himself, however, has been notably successful in building majorities by courting his fellow justices — in particular, Kennedy. His methods of persuasion are intellectual rather than personal, and they are closely tied to the court’s procedure for deciding cases. After the justices hear the oral arguments, they meet in a private conference to deliberate. After the chief justice speaks, each of the remaining justices speaks in order of seniority, so that Stevens speaks second. Then the justices vote, and the majority opinion is assigned. The majority opinion later circulates among the justices, and on rare occasions a justice may then change his or her vote, and a majority can become a dissent. But “you very rarely win votes if there aren’t five votes persuaded after our conference,” Stevens stressed. “Very rare.”
When he is in the majority, Stevens is careful not to lose votes that start off on his side, often assigning the opinion to Kennedy when Kennedy seems to be on the fence. “Sometimes,” he told me, “in all candor, if you think somebody might not be solid” after casting a vote in conference, “it might be wiser to let that person write the opinion,” because after defending a position at length, people “tend to become even more convinced” than when they started. For example, Stevens was effective in winning over Kennedy by asking him to write the majority opinion in Lawrence v. Texas, the 2003 decision striking down sodomy laws, which many liberals consider the Brown v. Board of Education of the gay rights movement. “It worked out O.K.,” Stevens told me, with typical understatement. “I don’t know if I’m entitled to the credit or Tony’s entitled to the credit, because he wrote an exceptional opinion.” In other cases, Stevens has written the majority opinion himself in an effort to shore up Kennedy’s vote. In April, for example, in a 5-to-4 case, the court allowed a lawsuit to proceed against the Environmental Protection Agency for its refusal to regulate global warming under the Clean Air Act; by citing several of Kennedy’s previous opinions in his own opinion, Stevens persuaded Kennedy to stay in the liberal camp.
On the issue of abortion, however, Stevens has failed to persuade Kennedy to vote consistently with the liberals. I asked Stevens about the decision last term in which Kennedy, writing for the five more conservative justices, upheld the federal ban on partial-birth abortion. Stevens said that the federal ban was deeply flawed and that Kennedy’s rhetoric about the need to protect women from the emotional trauma of abortions was frustrating. But he noted that the real-world effect of the defeat was minimal because of the widespread availability of alternative abortion procedures. “The statute is a silly statute,” he said. “It’s a silly statute.” He added, “It’s just a distressing exhibition by Congress, but what we decided isn’t all that important.”
I asked whether Stevens thought the right to abortion recognized in Roe v. Wade would survive in his lifetime. “Well, it’s up to Justice Kennedy,” he replied. “I don’t know about the two new justices” — Roberts and Alito — “but I kind of assume it may well be up to him.” Abortion rights supporters may take solace in the fact that Stevens indicated that Kennedy seemed to view the regulation of so-called partial-birth abortions as consistent with Planned Parenthood v. Casey, which upheld the central holding of Roe v. Wade. “I don’t think he thinks this” — the recent abortion opinion — “requires him to change his views at all,” Stevens said. “We’ll have to wait and see. I suppose there are a lot of people out there praying I get out of the way.”
Stevens was born on April 20, 1920, the youngest of four boys. His paternal grandfather, James W. Stevens, made a fortune as the founder of the Illinois Life Insurance company, and in 1927, his father, Ernest J. Stevens, built the Stevens Hotel in Chicago, now the Hilton Chicago, which he called “the largest and finest hotel in the world.” Built for a staggering price of $30 million, the Stevens hotel included 3,000 guest rooms, a movie theater and an ice cream factory. As Charles Lane reported in a
At age 7, during the opening banquet of the Stevens hotel, Stevens remembers meeting Amelia Earhart, who asked him, “Aren’t you out late on a school night?” A few months later, Charles Lindbergh stayed at the hotel after returning from his historic flight to Europe and, eager to unload the gifts that were filling his room, gave young Stevens a dove.
Stevens revered his father, a loyal Warren Harding Republican who mistrusted Franklin D. Roosevelt. Despite his political leanings, his father took the 12-year-old Stevens to the 1932 Democratic Convention in Chicago, where Stevens remembers not realizing Roosevelt had polio as he walked to the platform to deliver his acceptance speech. The same year, Stevens, an ardent Chicago Cubs fan, remembers sitting at Wrigley Field and watching Babe Ruth, in the fifth inning of Game 3 of the World Series, gesturing with his bat toward center field and hitting his famous “called shot” home run. (A scorecard from the game hangs in Stevens’s chambers.)
“I had a very happy childhood,” Stevens told me with a faraway look in his eyes. But events took a darker turn in 1934, when the Stevens Hotel went bankrupt in the Great Depression, and Stevens’s father, grandfather and uncle were indicted for diverting money from the Illinois Life Insurance company to make interest payments on bonds for the hotel. Stevens’s uncle committed suicide, and his father was convicted in 1934 of embezzling $1.3 million. “A totally unjust conviction, I can assure you,” Stevens told me with passion. Indeed, later that same year, the Illinois Supreme Court overturned the conviction. “There is not a scintilla of evidence of any concealment or fraud attempted,” the court noted.
I asked Stevens whether seeing his father unjustly convicted influenced his views on the Supreme Court. “I’m sure it did,” he replied. “You can’t forget about that.” Stevens said the experience had taught him a “very important lesson”: namely, “that the criminal justice system can misfire sometimes” because “it seriously misfired in that case.” As a Supreme Court justice, Stevens seems to have kept this lesson firmly in view. In criminal-justice cases from 1995 to 2001, according to numbers compiled by Christopher E. Smith of the School of Criminal Justice at Michigan State University, of all the justices on the court, Stevens took the most expansive view of individual rights, voting against the government 69.7 percent of the time. (The next most liberal justices were Ginsburg at 60 percent, Souter at 57.6 percent and Breyer at 54.9 percent.)
After graduating Phi Beta Kappa from the University of Chicago in 1941, Stevens enlisted in the Navy on Dec. 6, 1941, hours before the Japanese attacked Pearl Harbor. He later won a bronze star for his service as a cryptographer, after he helped break the code that informed American officials that Adm. Isoroku Yamamoto, the commander of the Japanese Navy and architect of the Pearl Harbor attack, was about to travel to the front. Based on the code-breaking of Stevens and others, U.S. pilots, on Roosevelt’s orders, shot down Yamamoto’s plane in April 1943.
Stevens told me he was troubled by the fact that Yamamoto, a highly intelligent officer who had lived in the United States and become friends with American officers, was shot down with so little apparent deliberation or humanitarian consideration. The experience, he said, raised questions in his mind about the fairness of the death penalty. “I was on the desk, on watch, when I got word that they had shot down Yamamoto in the Solomon Islands, and I remember thinking: This is a particular individual they went out to intercept,” he said. “There is a very different notion when you’re thinking about killing an individual, as opposed to killing a soldier in the line of fire.” Stevens said that, partly as a result of his World War II experience, he has tried on the court to narrow the category of offenders who are eligible for the death penalty and to ensure that it is imposed fairly and accurately. He has been the most outspoken critic of the death penalty on the current court.
Returning from the war in 1945, Stevens thought of becoming a high-school English teacher, like his mother, but instead was persuaded by his brother to enroll at University of Chicago Law School on the G.I. Bill. Two years later, he graduated first in his class, with the highest grade-point average in the history of the school. Based on the recommendations of his professors, who praised him as “the quickest” and “best balanced mind” they had ever seen, and the “most admired” and “best liked man in school,” he won a clerkship in 1947 with the Supreme Court justice Wiley Rutledge, a liberal New Dealer and former law-school dean appointed by F.D.R.
As a law clerk, Stevens reviewed cases involving liberty and security after World War II. The experience, he told me, shaped his views about the importance of judicial oversight of the president’s aggressive actions in terrorism cases after 9/11. Stevens worked with Rutledge on a dissent from a 1948 opinion upholding the right of the attorney general to deport German nationals considered to be Nazis without any review by federal courts. Rutledge objected to the idea that federal courts couldn’t issue writs of habeas corpus because the Germans were held on Ellis Island rather than falling within the jurisdiction of a federal district court. Stevens cited Rutledge’s dissent when he wrote a landmark majority opinion in the 2004 Rasul case, which allowed foreign nationals held at Guantánamo Bay to challenge their detention in U.S. courts. (A portrait of Rutledge hangs in Stevens’s chambers.)
Stevens was also influenced by Rutledge’s dissenting opinion in the Yamashita case in 1946, in which the court upheld the power of a military commission to try and to execute a Japanese general in the Philippines in violation of the Geneva Conventions. Emphasizing the dangers of denying anyone within American jurisdiction a fair trial, Stevens once again cited Rutledge’s dissent in his own opinion in the Hamdan case in 2006, which struck down President Bush’s military commissions because they were not specifically authorized by Congress. (Congress authorized them later that year.)
But Stevens, like Rutledge, does not always follow the civil-libertarian line: he has a Greatest Generation sense of patriotism, which he expressed in unexpectedly emotional dissents in 1989 and 1990 insisting that Congress and the states should have the power to ban flag burning.
After his Supreme Court clerkship, Stevens turned down an offer to teach at Yale Law School and instead became an antitrust lawyer in Chicago. He joined forces with moderate and liberal good-government Democrats, who were opposed to the corruption of the Daley machine. In 1969, he was appointed to investigate a political scandal on the Illinois Supreme Court, an investigation that made his professional reputation. A citizen activist named Sherman Skolnick accused the chief justice and another Illinois Supreme Court justice of accepting bank stock from a politically connected Chicago lawyer in exchange for deciding a case in his favor. The Illinois Supreme Court set up a special commission to investigate the allegations, and Stevens was appointed general counsel. After a six-week investigation, culminating in Stevens’s dramatic courtroom examination of the accused justices, the commission concluded that both men had, in fact, violated canons of judicial ethics, and both resigned.
Stevens told me that the experience of investigating the scandal of 1969 profoundly influenced the way he has approached his job as an appellate judge and Supreme Court justice. In the course of his investigation, Stevens discovered that a third Illinois Supreme Court justice, who was not under suspicion for bribery, had originally written a dissent from the disputed decision that he decided not to publish, in the interest of maintaining collegiality. “My immediate and strong reaction was that the public should have been informed” of the dissent, Stevens has written.
For that reason, Stevens went on to suggest, ever since he joined the Supreme Court, he has written more dissenting and separate concurring opinions than any of his colleagues. And his experience with the Commission of 1969 has made him even more skeptical of Chief Justice Roberts’s idea that unanimity is in itself a desirable goal. Ever since the early 19th century, there has been a vigorous debate about whether the Supreme Court and other appellate courts are best served by consensus or transparency — by unanimous opinions written by the chief justice, which was John Marshall’s view, or by separate opinions in which individual justices make their disagreements clear, which was the view of Marshall’s distant cousin and archrival, Thomas Jefferson. Roberts has explicitly embraced Marshall’s vision. Stevens, however, takes the Jeffersonian view. “I don’t believe in suppressing dissent,” he told me. “If you disagree you should say so. . . . I just feel I have an obligation to expose my views to the public.”
Stevens’s work on the Commission of 1969 brought him to the attention of Senator Charles Percy of Illinois, a moderate Republican who had decided to promote merit appointments to the federal bench instead of political cronies or ideologues. On Percy’s recommendation, President Nixon appointed Stevens to the U.S. Court of Appeals in Chicago in 1970. And five years later, when President Ford was looking for a replacement for Justice William O. Douglas, a liberal icon, in the wake of the Watergate scandal, he, too, decided to emphasize merit and competence over ideology or cronyism. Rejecting the advice of Barry Goldwater, who urged him to appoint the archconservative Robert Bork, and of his wife, Betty, who urged him to choose a woman, Ford chose Stevens as “the finest legal mind I could find.” The Senate enthusiastically agreed, by a vote of 98 to 0.
As a sign of how significantly the
I suggested that someone who held Stevens’s views would never be appointed by a Republican president today. “I suppose that’s probably right,” Stevens replied, shaking his head. Nevertheless, he emphasized that he still thinks of himself as a judicial conservative, which he defined as someone who tries to follow precedents and “who submerges his or her own views of sound policy to respect those decisions by the people who have authority to make them.” He insisted that although some people have called his record a “surprise,” his votes on the court have been consistent with the views he expressed during his confirmation hearings and as an appellate judge. “I don’t think that my votes represent a change in my own thinking,” he said. “I’m just disagreeing with changes that the others are making.” His own politics, he added, were far from liberal, noting by way of example that he believes in the powers of the free market and isn’t sure if the minimum wage is a sound policy. I asked whether he still considers himself a Republican. “That’s the kind of issue I shouldn’t comment on, either in private or in public!” he said with a smile.
Stevens is modest, friendly and even-tempered, and after he was appointed to the Supreme Court he got along well with his new colleagues. But he has made few close friendships on the court, with the exception of Souter, and during Stevens’s early years, he became known as something of a maverick. His opinions were hard to classify in ideological terms, and he seemed less interested in persuading his colleagues than in explaining his own reasoning about every case as thoroughly as possible. “At the beginning, he got a reputation as being a nit-picker,” says his longtime friend Abner Mikva, former chief judge of the U.S. Court of Appeals for the D.C. circuit. “The majority and dissent were fighting about major issues, and he was worrying about the edges.”
Stevens’s reputation as an idiosyncratic loner was enhanced by his unique work habits. Unlike his colleagues, for example, Stevens did not let his law clerks join the common pool of shared clerks who collectively review the more than 7,000 petitions that the court receives each year from litigants and make recommendations to the full court about which cases should be heard. Only when a justice and his clerks individually review each of the petitions, Stevens says, can they ensure that the other justices aren’t overlooking important allegations of wrongdoing from marginalized applicants whose voices deserve to be heard, like Sherman Skolnick, the Chicago activist.
Since Stevens joined the court, he has also been the only justice routinely to write the first drafts of his own opinions — the other justices have generally relied on clerks to write their first drafts and then rewritten (or at least edited) the drafts to various degrees. “Sometimes the draft is pretty short,” Stevens told me, “but at least I write enough so that I’ve had a chance to think it through.” Stevens said writing a first draft was “terribly important” because “you often don’t understand a case until you’ve tried to write it out.”
Stevens also distinguished himself as the only justice to spend a substantial part of each Supreme Court term away from Washington. He and his wife have a condominium in Fort Lauderdale, Fla., and they spend two weeks a month there from November through April. (In 1979, Stevens was divorced from Elizabeth Jane Sheeren, whom he married in 1942, and married Maryan Mulholland Simon.) “I do much more work in Florida than I do here,” Stevens told me, looking contented. He sometimes reads briefs on the beach. “One of my favorite memories is the time I was sitting” on the Supreme Court bench in Washington just after returning from Florida, he recalled. “I shook the sand out of the brief!” During his early years on the court, Stevens was known as “the FedEx justice” because he would hand-write his drafts on a yellow pad, dictate them for his secretary, FedEx them to Washington so she could type them up and then FedEx back and forth with his law clerks for editing. “That was cumbersome,” he recalled. But he switched to computers about 20 years ago and, with a secure Internet connection and phone line, he has become the first telecommuting justice.
Stevens has no security agents in Fort Lauderdale — he says they would only attract attention — and is so low-key that most of his neighbors don’t seem to realize they have a Supreme Court justice in their midst. “I’m basically anonymous down there, which is the way I like it,” he said. Stevens said some good friends in a nearby building didn’t know who he was for quite a while. “I’d be reading briefs by the pool, and one of them would say, ‘That’s awful stuffy!’ ” He swims every day in the ocean, plays tennis at least three times a week and plays golf two or three times a week. “I get a lot of exercise down there, and my wife feeds me very well, so it works out very well,” Stevens said happily. He tries to maintain this vigorous exercise schedule when he is in Washington, playing tennis two or three times a week, often with one of his three daughters. (His son died in 1996 of cancer.) He is in such good physical shape that, in 2005, at age 85, he threw the first pitch at a Cubs-Reds game at Wrigley Field and got it right over the plate.
During Stevens’s first years on the court, he sometimes commuted to Florida in an unusual way: as the pilot of his own private plane. “My secret ambition was to get Gerry Ford to take a ride in my airplane,” he said. “Any plane that contains the president becomes Air Force One,” Stevens explained, so “I would be able to call the tower and say, ‘This is Air Force One!’ ”
Stevens’s approach to the job changed noticeably when Blackmun retired in 1994 and Stevens became senior associate justice. He devoted more attention to using his new assignment power to build majorities and to persuade the swing voters,
The first is that the government has a duty to behave impartially, rather than favoring one group over another for partisan or sectarian reasons. “It seems to me that one of the overriding principles in running the country is the government ought to be neutral,” Stevens told me. “It has a very strong obligation to be impartial, and not use its power to advance political agendas or personal agendas.”
Consider affirmative action, an area in which many people believe Stevens became more liberal. In 1980, he dissented from the court’s decision upholding racial preferences in federal contracting, explosively comparing them with the Nazi laws excluding Jews from citizenship. More recently, however, he has voted enthusiastically to uphold affirmative action in universities and public-school enrollment plans, comparing them to welcome mats rather than no-trespassing signs. To Stevens, however, his views have been consistent. “There’s a tremendous difference in using affirmative action when you get a group to build a highway and affirmative action in the educational context,” he told me. “I think my rhetoric was probably a little strong,” he continued, but the federal law authorizing racial preferences for highway contracts was a “slapdash statute” that was based on pork-barrel politics, benefiting one group of contractors rather than citizens as a whole. In schools and universities, by contrast, “the whole student body profits from having diversity in the classes. So I really don’t think I’ve changed my views about this.”
Stevens has been prescient in cases involving race discrimination. As early as 1948, when he was a law clerk, he wrote a memo to Rutledge suggesting that segregation was unconstitutional, as Diane Amann, a visiting professor of law at the
Abortion is another area in which Stevens has insisted on the duty of the government to act impartially rather than favoring some groups over others for sectarian reasons. He has suggested that restrictions on a woman’s right to choose may be unconstitutional because they reflect religiously motivated views about human life — thus violating the government’s responsibility under the First Amendment to be neutral between religious and secular viewpoints. “I think the less judges have to decide the better, and I frankly look at who should decide this,” he told me. “Obviously, I think basically the woman is the person most affected by it and has tremendously important interests; better to have her decide these questions with her own counselors and guidance than to have judges and legislators deciding something like this.”
Stevens says he thinks if Roe v. Wade had been written more narrowly, the court might have avoided some of the criticism that ensued. “In all candor,” he told me, “I think Harry [Blackmun] could have written a better opinion. I think if the opinion had said what Potter Stewart said very briefly” — namely that the right to marital and family privacy previously recognized by the court included a right to choose abortion — “it might have been much more acceptable, instead of trying to create a new doctrine that really didn’t make sense.”
When he went through the confirmation process in 1975, just two years after Roe, Stevens recalled, he was not asked a single question about it. Only later, because of the reaction that followed Roe, did abortion become a central issue in national politics. “I’m really not sure that it’s fair to blame the court for the hostility that’s come on, but I do think that a better opinion might have avoided some of the criticism.”
Stevens’s conservative critics have been skeptical of his claims of judicial neutrality. In a critique of Stevens’s “sometimes eccentric” jurisprudence, Robert Nagel of the
Another of Stevens’s longstanding themes is the need for judicial oversight of broad claims of executive power, starting in the post-Watergate era. Stevens’s repeated insistence that the president isn’t above the law has led him to rule not only against President Bush in cases concerning the prosecution of the war on terror but also against President Clinton in Clinton v. Jones, in which Stevens wrote the majority opinion in 1997 allowing the Paula Jones sexual-harassment suit to proceed while Clinton was in office. I mentioned that many people had ridiculed his prediction that the Clinton v. Jones case “appears to us highly unlikely to occupy any substantial amount of” the president’s time. “I remember somebody writing, ‘That’s the dumbest statement in history,’ ” Stevens said with a laugh. But Stevens is convinced he was absolutely right. “The discovery in that case should have taken a day or two,” he told me. “Of course, I didn’t realize at the time we wrote it that the independent counsel was going to get involved, and we didn’t realize that the president wasn’t going to tell the truth!”
Nevertheless, Stevens insisted, it wasn’t fair to blame the court for having precipitated Clinton’s impeachment. “The issue in that case was whether he could have the trial postponed until he left office. But everyone agreed that the deposition had to go forward — even Clinton’s lawyers,” he said. “So the decision had absolutely no impact on the impeachment, but I know I get heat for it.”
Stevens is similarly confident about the other recent majority opinion he wrote for the court that has inspired fierce criticism — Kelo, which held in 2005 that the city of New London, Conn., could use its power of eminent domain to seize a woman’s house and redevelop private land into a commercial office park. The decision has energized the grass-roots property rights movement. To Stevens, however, the decision is a textbook example of judicial restraint, deferring to the policy decisions of elected officials and following clearly established precedents. “As you know there are pressure groups that have very strong feelings about property rights,” he told me. “I sympathize with all that, but I thought that was a clear case of what the law compelled.” He added: “It’s part of the job to write unpopular decisions. No doubt about it.”
Stevens’s final judicial theme is that the court has an obligation to protect ideals of equality and liberty in light of the nation’s entire history, rather than legalistically parsing the original understanding of the Constitution. As the court moved right during the past 20 years, Stevens increasingly saw it as his role to interpret the Constitution with fidelity to all of American history, rejecting the claim of Justices Antonin Scalia and Clarence Thomas and Judge Robert Bork that the original understanding of the 18th-century framers is all that matters. I noticed a copy of Bork’s book “Slouching Toward Gomorrah” on Stevens’s coffee table and expressed surprise. “He and I were good friends,” Stevens said laughing, and confessing that he hadn’t read the book. But Stevens disagrees with Bork’s exclusive emphasis on original intent: “Originalism is perfectly sensible. I always try to figure out what the original intent was, but to say that’s the Bible and nothing else counts seems to me quite wrong.”
In Stevens’s most eloquent opinions, he has often invoked his own personal history to illustrate the narrative arc of the American experience. Last June, in his dissent from Roberts’s opinion upholding the power of a school principal to suspend a student for a banner that read, “Bong Hits for Jesus,” Stevens mentioned some “personal recollections that have no doubt influenced my conclusion that it would be profoundly unwise to create special rules for speech about drug and alcohol use.” He went on, “The current dominant opinion supporting the war on drugs in general, and our anti-marijuana laws in particular, is reminiscent of the opinion that supported the nationwide ban on alcohol consumption when I was a student.” Just as prohibition in the 1920s and early 30s was “secretly questioned” by thousands of otherwise law-abiding citizens, he continued, so opponents of the war on drugs today may express their views only silently for fear of majority disapproval. In a concurring opinion, Justice Thomas insisted unapologetically that, because teachers in the colonial era imposed strict discipline “with an iron hand,” students today should have no First Amendment rights of freedom of speech in public schools. Stevens, by contrast, interpreted the amendment in light of the reality of 20th-century protest movements, including anti-Vietnam demonstrations at the Democratic convention of 1968, which took place in Grant Park outside the Stevens Hotel in Chicago.
Some legal scholars view Stevens’s sense of history as a reason for his warm embrace by liberals. “Stevens became the leader of the left on the court,” says Robert Post, a professor at Yale Law School, “because he’s able to say, ‘I remember, and I’m faithful to what has happened in the past, but my fidelity is to all of American history.’ ”
Stevens looks to be in remarkable shape for an 87-year-old man and, as he stressed in his confirmation hearings, his family has a history of longevity. His father died a week before his 88th birthday, and his mother lived until 97. Stevens told me that he has no intention of retiring. “Harry Blackmun used to complain about how hard the job was, how it was a real burden, and he was a workaholic,” Stevens told me. “But I like the job,” he said with a laugh. “I wouldn’t stay here if I weren’t enjoying it, and I’m really privileged to have this job.” He looked at me earnestly. “It’s not everybody my age who is able to continue to do work that he likes to do,” he said. “I think I’m making probably a positive contribution at it still, so I don’t think I have an obligation to quit, although probably a lot of people out there think I should.”
Nevertheless, Stevens can’t remain on the court forever. Buoyed by the hope of a Democratic president, liberal legal scholars are already speculating about the possibility that Stevens might be succeeded by a similarly liberal justice in the next few years.
A natural place for a Democratic president to start looking for candidates would be to choose a justice in the model of Breyer, Ginsburg or Souter. But liberal interest groups are unlikely to be satisfied with a justice in their molds for the simple reason that none of them are considered liberal enough.
If a Democratic president wants to replace Stevens with a justice even more liberal than he is, another possibility would be to look backward to the old-style liberal philosopher kings of the Warren era, exemplified by Stevens’s predecessor, William O. Douglas. But a Democratic president would be unlikely to choose a candidate from among the liberal philosopher kings, because a political constituency no longer exists to support the 1960s-era notion that the courts are equipped to reconstruct American society along egalitarian lines. An opposite strategy, recently advocated in The New Republic by Douglas Kendall of the Community Rights Counsel and James Ryan of the University of Virginia, would be to appoint a “progressive originalist” who could turn Scalia’s methodology against him, invoking the original understanding of the Constitution to justify liberal rather than conservative results. In a response to Kendall and Ryan, however, Post and his fellow progressive scholar Reva Siegel, also of Yale Law School, have argued that the attempt to beat Scalia at his own game is a capitulation to the conservative terms of debate that is also unlikely to resonate with liberal voters in the country as a whole.
I recently asked Post and Siegel to identify a progressive vision for the next liberal justice that could mobilize Democratic voters as well as provide an effective counterweight to the four movement conservatives on the Roberts Court. They answered that the next truly liberal justice would have at least four qualities. First, in an age when the conservative justices are determined to cut off access to the courts in cases from civil rights to terrorism, the next liberal justice would interpret the Constitution to provide “access to the courts to enforce the rule of law” and would “understand that even the most powerful president is not a king.” Second, the justice would “interpret the Constitution in light of the entire history of the nation, and not just in light of the Constitution’s drafting history.” Third, the justice would “interpret the Constitution to create conditions of equal liberty to participate in the life of the nation” — in areas ranging from abortion and sex equality to affirmative action and campaign finance reform. Finally, instead of reading the Constitution in a cramped, legalistic fashion, the justice would “interpret the Constitution to create a partnership between courts and the popular branches,” encouraging Congress and the American people to debate and define constitutional values. They provided, in effect, a list of the very qualities that defined the mature vision of Justice Stevens.
Identifying potential Stevenses in their 40s or 50s may not be easy: Stevens after all, hadn’t evolved into the justice he would become when he joined the court at age 55. But one way to identify future Stevenses may be to focus less on ideology than on temperament. Stevens’s successor should share his dedication to preserving the deeply rooted precedents of the past, and that dedication reflects his sensibility and character more than his personal politics. When we talked, I was especially impressed with Stevens’s character: his engagement, curiosity, combination of toughness and vision, strong internal compass and refusal to go along with the crowd, his decisiveness, analytical power, modesty (but not false modesty), devotion to the court as a steady institution and sense of wonder and gratitude for the remarkable opportunities that had come his way.
Near the end of my interview with Stevens, as I started to leave his chambers, he almost shyly suggested that I might want to consult some of the opinions he wrote on the U.S. Court of Appeals in Chicago, before he joined the Supreme Court. I should be sure, he said, to look up a case from 1970, in which his colleagues, at the request of an incumbent U.S. senator from Indiana, stopped a recount in a close election on the grounds that it might compromise the integrity of the ballots. Stevens dissented, insisting that the recount procedures were perfectly fair and that the state judges should be trusted to handle the litigation honestly, without having their impartiality questioned by interference from federal courts. I asked Stevens why the decision was important. “Because,” he said, his eyes flashing, “I had it very much in mind when I wrote Bush against Gore.”
Even as his opinions have made him a model for liberals around the country, Stevens is more interested in demonstrating his intellectual consistency and temperament as a judge’s judge. “You write what you think is correct and important,” he told me matter-of-factly. “I don’t consider myself a mobilizer.”
Jeffrey Rosen, a law professor at George Washington University, is a frequent contributor to the magazine. He is the author most recently of “The Supreme Court: The Personalities and Rivalries That Defined America.”
