For those of us who enjoyed the rare privilege of clerking for Justice John Paul Stevens, who died Tuesday just months shy of his 100th birthday, there was only one Boss. And it was not Bruce Springsteen.
On a personal level, I will always remember Stevens as the bow-tied Chicagoan who on first acquaintance put me, a nervous clerkship interviewee, at ease by recalling his own visits to my hometown — and who, many years later, would perch at a picnic table and have a grandfatherly chat with my wee son while signing a Justice Stevens bobblehead for him. That quiet kindness is what I will treasure most. It gave me both confidence and a model for comportment that I have tried to follow in my career.
On a professional level, Stevens’s imprint on U.S. jurisprudence cannot be captured in a few short paragraphs. I can only try to highlight a few aspects.
Stevens was born in 1920 into a family grown wealthy in the hotel and insurance industries. He joined the Supreme Court in 1975 with a nomination from President Gerald R. Ford. His early years on the court reflected that background, as he sided with other Republican appointees, voting, for example, in favor of reinstating capital punishment and against some affirmative action plans to speed workforce diversity.
But by the end of his career, his views on such matters changed. On the death penalty, Stevens signaled his opposition to “state-sanctioned killing” in a 2008 opinion and urged in a post-retirement book a constitutional amendment abolishing the practice.
With regard to affirmative action, Stevens dissented in 2007 from the conclusion that a school’s plan to avoid resegregation harked back to the time before Brown vs. Board of Education, when, the majority wrote, “schoolchildren were told where they could and could not go to school based on the color of their skin.” Stevens retorted that “it was only black schoolchildren who were so ordered; indeed, the history books do not tell stories of white children struggling to attend black schools.” He added that “children of all races benefit from integrated classrooms and playgrounds.” In a way, the dissent returned Stevens to his first service on the court, as the law clerk who had recommended that the court outlaw desegregation in 1948, six years before Brown was decided.
That 1948 memo is evidence that early on Stevens held a view most would call “liberal” or “progressive,” and so undermines the linear claim that he began as a “conservative” or “moderate conservative,” then moved left to become a “liberal” late in life. Stevens’s 1986 dissent in Bowers vs. Hardwick, in which a majority approved criminal punishment for same-sex sexual conduct, further damages that claim. So, too, perhaps, does his opinion in a 1989 abortion case that a state law violated constitutional separation of church and state. That opinion won little favor at the time but seems prescient in light of the so-called heartbeat bills that several states enacted this year.
It is closer to the mark to say that the justice was gifted with a fertile mind, one open to reconsideration when new experiences and new thoughts warranted.
Stevens brought a Midwestern sensibility with him to Washington. To colleagues on the court, to staff and to litigants before the bench, he was a gentleperson’s gentleperson — a practitioner of a kind of civility seldom seen in contemporary public affairs.
“Maverick” was the label given him in his early years on the court. It was not an altogether complimentary one, and no doubt reflected other justices’ frustration that his was seldom a sure vote and that in any event he was likely to write separately to make his own views clear. But as the court’s composition changed, Stevens’s ability to maintain collegial relations with everyone became an asset.
That set the stage for the most important chapter in Stevens’s long career: the last decade before his 2010 retirement. As the senior associate justice, he was responsible for assigning majority opinions whenever the chief justice dissented. In that role, he built coalitions that, among other things, pushed back attacks on the abortion precedent set in 1973 in Roe vs. Wade and moved forward on the rights of LGBTQ people by outlawing criminal punishment of same-sex intimacy.
In many such cases, he assigned the writing to another justice. But he kept for himself Hamdan vs. Rumsfeld, which struck down the president’s unilateral establishment of the military commissions designed to try noncitizens accused of terrorist crimes. The choice was apt, for Stevens had earned a Bronze Star as a Navy codebreaker during World War II. His 2006 decision in Hamdan required Congress to weigh in on the controversy and reaffirmed the court’s authority to check the president when he overstepped the bounds of the Constitution — both points that bear repeating in our present time.
This is not to say that Stevens always emerged the victor. Congress quickly rubber-stamped the plan for military commissions, which continue to limp along at Guantanamo Bay. And Stevens’s arguments that the Second Amendment provides no individual right to possess firearms and further that government may place extensive restrictions on such possession did not secure a majority.
But such give-and-take is the nature of work on the Supreme Court. So is the possibility that arguments voiced in dissent one day might be transformed into a majority opinion.
All of Stevens’s writings, as well as the mild-mannered role model he embodied, remain as a rich legacy, one from which every generation of American public servants would do well to borrow. I know that I shall continue to do so.
Diane Marie Amann, a law clerk to Justice John Paul Stevens during the 1988 October term, is Emily and Ernest Woodruff chair in international law and faculty co-director of the Dean Rusk International Law Center at the University of Georgia School of Law. She wrote this article for the Washington Post.