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“Independent-minded” may best describe the life and judicial career of Justice John Paul Stevens, nominated by a Republican President to sit on the Supreme Court, but who in his three-plus decades on the bench staked out generally liberal views on the law and Constitution.
Stevens died Tuesday in Florida after a brief illness. He was 99, and earlier this year released a memoir of his years on the bench.
The oldest member of the Court before he retired in 2010, Stevens had been a difficult justice to peg, almost from the day he was first nominated 35 years earlier.
“He’s not someone who’s historically been a champion of either political camp,” said Eduardo Peñalver, a former Stevens law clerk. “He was a humble person who despite his position and stature, was at ease with all kinds of people, and able to bring them together.”
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On the bench, Stevens is remembered for taking out of a case only what was presented to him, refusing to issue sweeping pronouncements on judicial philosophy. This minimalist approach earned him both praise and criticism, but colleagues say he never swayed. “It is not our job to apply laws that have not yet been written,” he once said.
“Stevens was probably one of the least known justices publicly, and it’s ironic because he has had as big an impact of the Supreme Court and on American society as any justice,” said Clifford Sloan, a 1985 law clerk and now a private attorney. “But his niceness and his unassuming manner should not be mistaken for any kind of softness. He has the sharpest mind I’ve ever encountered.”
John Paul Stevens grew up in Chicago, and was raised quite literally in a hotel. Built by his father, Ernest, and promoted as the largest and finest of its kind, the Stevens Hotel was the product of the Roaring Twenties, of brash optimism and unlimited potential. A photo from the Chicago Daily News, shortly after the Stevens opened in 1927, shows a giggling young John and two of his brothers in a hotel playroom, dressed uncomfortably in suit and ties, working a jigsaw puzzle.
“I’m very proud of the Stevens Hotel,” he once said. “It’s one of my dad’s contributions to the city.”
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The Jazz Age splendor came to an end with the Great Depression, and so too did the fortunes of the brand new Stevens Hotel. It went bankrupt in 1934, and things soon got worse for the Stevens family. John’s father, grandfather, and uncle were indicted by the state, accused of illegally embezzling money from the family insurance company to make payments on the building. Ernest Stevens was convicted but it was later overturned on appeal.
John moved on with his life, rarely speaking publicly about the bankruptcy. He attended the University of Chicago, where his generally moderate views stuck out on what was then a very liberal campus.
He later became an intelligence officer in World War II, earning a Bronze Star. At war’s end, following his brother’s advice, Stevens enrolled in law school at Northwestern University.
“At the time, I was trying to decide what to do, and it seemed like a sensible move,” Stevens told me in 2009, with his characteristic Midwestern modesty.
His stellar academic performance earned him a prestigious Supreme Court clerkship for Justice Wiley Rutledge in 1947-48. Afterward, Stevens settled into comfortable, familiar surroundings as a private attorney in Chicago, specializing in antitrust law.
JOINING THE BENCH
Stevens’ judicial career began in 1970 when President Richard Nixon nominated him to the federal appeals court in Chicago. He earned a reputation as a judge who put a pragmatic eye on cases, without rigid ideology. He was a registered Republican, but never active in local or national politics.
“One of the things that was said about him repeatedly was that he was a ‘judge’s judge,'” said Peñalver. “Especially in a day and age when both parties jockey — certainly more on the right — to nominate judges who they see as transforming the law and embracing fairly strong ideological positions. Justice Stevens was the opposite of that, someone who was very skeptical of that style of judging.”
That reputation for even-handed jurisprudence and “clean” reputation was just what President Ford was looking for in 1975 when Justice William Douglas retired after a debilitating stroke.
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The Watergate scandal had left a nation angry and divided. Ford hoped a moderate, non-political judge would inspire greater public confidence in the government. Public reaction was one of initial confusion, as the press and pundits struggled to categorize Stevens. An ideological conservative? A doctrinaire liberal? A “centrist” seemed to fit.
“When people look at the Supreme Court, they try to put people in factions– liberals or conservatives,” said Sloan. “Justice Stevens, from his first day on the Supreme Court, has defied labels. He approached cases on his own terms and he frequently comes up with original ways of approaching cases and the issues that have carried the day.”
“THE COURT HAS CHANGED UNDER US”
Stevens’ early years on the high court found him in agreement with many of his fellow conservatives. In his first year, he wrote opinions that reinstated the death penalty, after a four-year moratorium.
These important rulings, however, imposed new legal standards, upholding the use of so-called “discretionary” guidelines for juries when deciding life or death — such as mitigating or aggravating factors — in a separate sentencing phase of a trial. And the Court threw out “mandatory” death sentences for certain crimes, like murder or rape, which disregarded aspects of the offense that might favor the defendant.
Another early opinion by Stevens gained him instant public renown. In FCC v. Pacifica Foundation (1978), the justices upheld the government’s authority to regulate “indecent” speech, which Stevens famously defined as any depiction or description of “sexual or excretory activities or organs” in a manner that it deems “patently offensive as measured by contemporary community standards for the broadcast medium.”
The offending speech was an infamous monologue by comedian George Carlin, who spoke about society’s taboo surrounding “seven dirty words.” But Stevens steered clear of a philosophical discourse on the First Amendment, choosing instead what became a Stevens trademark, the practical effect of Court rulings. His justification for suppressing “dirty” speech: protecting young children, who might be watching or listening.
In later years, however, Stevens led the Court away from restrictive government censorship of risqué speech or content. Beginning in 1997, he was the driving force striking down several attempts by Congress to protect children from pornography on the Internet, saying it violated the free speech rights of adults.
Other cases in Stevens’ early years reflected his more conservative roots: upholding federal funding restrictions for abortions, and limiting affirmative action programs.
But with the elevation of William Rehnquist to chief justice in 1986, and the addition of more conservative justices, Stevens came be viewed by many political observers as a “transformed” liberal.
Yet the body of legal scholars disagrees with that label. “He was thought to be what I call an ‘Establishment’ Republican– not an ideologue” when he joined the Court, said Edward Lazarus, a onetime Supreme Court law clerk and author of “Closed Chambers.” “Whether that label was true or not, whoever John Paul Stevens was in 1975 is pretty much what you see today. So ironically, an ‘Establishment’ Republican became the leader of the liberal wing of the Court, and that says a lot about how far this Court has drifted to the right over the last 30 some years.”
And Stevens never thought he had evolved. Justice Harry Blackmun, who joined the Court six years before Stevens, once recalled the two of them talking about their ideology. “John Stevens and I were joking the other day,” said Blackmun, “the fact he being appointed by Ford and I being one of the original Nixon appointees, we’re now the liberals among the court. Each of us steadfastly adhered to the proposition that neither of us had changed, the court has changed under us.”
Nearly every important social issue before the Court in recent years has had Stevens’ imprint, including the 1985 opinion striking down Alabama’s “moment of silence” for prayer or meditation in public schools.
A year later he dissented in an opinion upholding anti-sodomy laws. “When I clerked for him, the Supreme Court ruled it was okay to have criminal penalties for gay, consensual sex, something he disagreed with,” recalled Sloan. “Seventeen years later [in 2003] the Supreme Court reversed that position and said Justice Stevens was right.”
In 1989, Stevens dissented in a case upholding state laws allowing the execution of juvenile killers. That case, too, was overturned in recent years, again led by Stevens.
And in 1992, he joined a divided Court in upholding the essential right to an abortion, saying states can place “no undue burden” on women seeking the procedure.
When Stevens became second in seniority in 1994, his powers of persuasion made him a key player on the Court, particularly with the more liberal and moderate justices. His quiet influence became evident as he came to be author of some of the most important rulings of the 2000s.
In the 2005 term, he wrote opinions striking down federal sentencing guidelines and state laws allowing use of “medical marijuana.” He also permitted local governments to use eminent domain laws to take private homes and give them to private developers to build shopping malls and factories. In that case, Kelo v. City of New London, Stevens again took a practical position, saying, “The city has carefully formulated an economic development plan that it believes will provide appreciable benefits to the community, including — but by no means limited to — new jobs and increased tax revenue.”
A year earlier, Stevens led the way in upholding sweeping federal election reform and held states liable when they fail to accommodate disabled persons from gaining access to public buildings. And in the first terrorism case to arise from the 9/11 attacks, Stevens said foreign-born terror suspects captured abroad and held at a Navy-run prison at Guantánamo Bay, Cuba, have a right to challenge their detention in U.S. courts. For him, the issue was simple: “What is presently at stake is only whether the federal courts have jurisdiction to determine the legality of the executive’s potentially indefinite detention of individuals who claim to be wholly innocent of wrongdoing.”
He also authored the 2002 landmark appeal that banned the execution of the mentally disabled. This was one area of law where Stevens’ views changed dramatically over the years, as he consistently voted to block the use of the death penalty.
In a 2005 speech, he issued a biting critique of capital punishment, stopping just short of calling for its abolition. “With the benefit of DNA evidence, we have learned that a substantial number of death sentences have been imposed erroneously,” he said. “That evidence is profoundly significant. Not only because of it’s relevance to the debate about the wisdom of continuing to administer capital punishment, but also because it indicates that there must be serious flaws in our administration of criminal justice.”
FROM PAULA TO MONICA TO BUSH V. GORE
A 1997 ruling written by Stevens began a chain of dramatic political events. The justices concluded the President enjoyed no executive immunity from civil claims while in office. That allowed a lawsuit by Paula Jones against President Bill Clinton to go forward. She had accused him of improper sexual advances while he was Arkansas government. That case led to disclosures Clinton was having an affair while President with Monica Lewinsky, a White House intern.
But where individual rights collided with the power of states, Stevens was likely to side with the independence of the individual, but not always. In 1989, he authored a dissent in Texas v. Johnson, which ruled that flag-burning was protected by the First Amendment. The war veteran disagreed, arguing that the case “has nothing to do with ‘disagreeable ideas.’ It involves disagreeable conduct that, in my opinion, diminishes the value of an important national asset.”
“That case just caught an emotional streak in him, and he read his dissent in that case from the bench,” recalled Lazarus, “And I don’t think anybody who heard him read that dissent– the passion with which he looked at the flag and what it meant for him– could really ever think about the American flag the same way when you look at it, whatever you thought about the legal issue. There’s a deep steak of patriotism in Justice Stevens and it was wonderful to see it on display in the court that morning.”
Stevens became viewed by many conservatives as a traitor of sorts, having become the leader of the Court’s liberal wing after being nominated by a Republican president. Anti-abortion groups in particular criticized his rulings on that hot-button issue.
Operation Rescue was one of many groups demanding he step down from the bench, saying in February 2006, “Our nation is weary of your brand of judicial activism… For the good of the nation, please announce your retirement as soon as possible.”
Part of the Stevens mystique is a certain “I didn’t know that” quality surrounding his life off the bench. He was nationally recognized bridge player, piloted his own small airplane for years, and played in golf and tennis well into his eighties. In recent years, Stevens stayed out of the spotlight, rarely granting interviews, even preventing cameras from covering his occasional speeches. He spent much of his free time at his Florida vacation home, reading.
On the bench, he was known for his thick-rimmed glasses, bow ties, and friendly manner toward the often nervous lawyers arguing before the justices. His questioning was gentle but firm. However, he was not shy with tossing sharply worded barbs at fellow justices with whom he disagreed.
Stevens became more critical of the growing conservative strength of the Supreme Court beginning in President Ronald Reagan’s first term. In a 1984 speech, he made unusually harsh remarks aimed at some recent cases. In one, the Court upheld federal aid to schools that might discriminate against women. “The Court went out of its way to announce that the statute did not forbid sex discrimination throughout the associated institution,” said Stevens, “even though neither party had argued that it did.”
And during the 2000 Florida presidential recount, when the high court ultimately ruled in George W. Bush’s favor, Stevens could barely contain his frustration at the outcome.
“I think that case was devastating to Justice Stevens as well as some of the other more liberal justices on the court,” said Lazarus. “They could not understand how the conservatives could conceivably reach the result they did in that case and I think that has hardened the feelings of Justice Stevens a bit. It has brought out a little more of an acid tongue in some of his opinions than you would have seen in the late ’80s and early ’90s.”
In his dissenting opinion, Stevens slammed the conservative majority, writing, “Although we may never know with complete certainty the identity of the winner of this year’s presidential election, the identity of the loser is perfectly clear. It is the nation’s confidence in the judge as an impartial guardian of the rule of law.
Friends and colleagues admit Stevens was something of an enigma, hard to figure personally and professionally. He was one of the few justices who has publicly supported bringing cameras into the Supreme Court during oral arguments. Currently, only sketch artists hired by the media are allowed to make a visual record. But during an exhibition of court sketches over the decades, sponsored by the Court’s historical society, Stevens insisted all sketches with his likeness be removed. No reason was given.
“He really savors his anonymity,” said former clerk Peñalver, “and he isn’t really out for personal glory and shies away from opportunities to claim it.”
The Midwestern-born justice mostly avoided the Washington social scene, which he found uncomfortable, but occasionally rewarding. He recently recalled his first year on the Court, when he initially turned down an invitation to a fancy white-tie event. Justice William Brennan persuaded him to attend, even lending him his tuxedo, complete with tails.
“The fit was not exactly perfect,” he remembered, “but I accepted and have been eternally grateful for a generous act that made it possible for me to spend an evening with the still-gorgeous and charming Ginger Rogers as my dinner partner.”
The paradox of John Paul Stevens will leave many historians scratching their heads over his three-plus decade influence on the Supreme Court. Most will agree he was an intellectually gifted jurist with an aversion for public recognition; a personally friendly man not afraid to hit back professionally with his pen.
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His emergence in those last years on the high court as a profound, influential voice had, in many ways, come to dominate a fractured Court.
“He really strove for a kind of fairness in his jurisprudence,” said Peñalver, “a nuance that resists ideological characterizations. He wasn’t a hero of the right like [Antonin] Scalia, or a hero of the left like Brennan or [Thurgood] Marshall. “He’s done his own thing and that idiosyncrasy has in some ways kept him from the limelight.”
And that probably suited the ever-cordial, ever-vigilant Justice Stevens just fine.
Fox News Chief Legal Correspondent Shannon Bream contributed to this report.
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