Retired Supreme Court Justice John Paul Stevens, who died Tuesday at the age of 99, saw many remarkable sights in his life, famously including the “called shot” home run hit by Babe Ruth during the Yankees-Cubs World Series game in 1932.
Yet the most important thing this remarkable jurist saw, I suspect, was the arrest of his father, Ernest Stevens, on charges that he and two other family members had embezzled funds to cover losses at their downtown-Chicago hotel.
Ernest was convicted, but his conviction was overturned a year later by an appeals court that found “not a scintilla” of evidence of criminal intent. Like most tales of criminal justice, however, this one has no happy ending. John Paul’s grandfather, J.W., stunned by the disgrace, died of a stroke while charges were pending; his uncle Raymond committed suicide with a handgun. The family lost its magnificent hotel and was left bankrupt.
John Paul, who was 12 years old when the ordeal began, spoke laconically to The Washington Post’s Robert Barnes last May about what he had learned from that episode: “firsthand knowledge of the criminal-justice [system]’s fallibility.” Though he did not wear his heart on his robe, it’s impossible to read his opinions without concluding that he had also learned some judicial empathy for those trapped in the system’s coils.
John Paul Stevens was born on April 20, 1920. He opened his eyes in the early years of “the American century,” when many in the young nation, right or wrong, looked ahead to a future imagined as an uninterrupted parade of national growth. He closed them Tuesday at his home in Fort Lauderdale, Florida, at a time when the future seems far more foreboding.
After the Depression and the law nearly destroyed his family, Stevens attended the University of Chicago. He joined the Navy on the day before the Japanese attack on Pearl Harbor; his work compiling and decoding Japanese radio transmissions helped guide the Navy planes that shot down and killed Admiral Isoroku Yamamoto, the architect of the attack, a year and a half later. (Stevens later received a Bronze Star for his service.) After the war, he studied law at Northwestern University and clerked for Supreme Court Justice Wiley Rutledge; but he learned his craft not in government service but as a private lawyer in Chicago. Though his specialty was antitrust, he took time out of his career to provide counsel for an investigating commission that uncovered corruption on the Illinois appellate bench, and later staffed a congressional investigation into antitrust aspects of professional baseball.
His ascent to the bench flowed directly from the traumatic collapse of Richard Nixon’s presidency. Nixon’s successor, Gerald Ford, sought to provide a unifying nomination after the sharp divisions of the Watergate era. He succeeded—Stevens won unanimous approval from a Democratic-majority Senate. Ford did not win election the next year; he later said, “I am prepared to allow history’s judgment of my term in office to rest—if necessary, exclusively—on my nomination 30 years ago of Justice John Paul Stevens to the U.S. Supreme Court.”
Stevens joined the Court in 1975 as a moderately conservative justice on a moderately liberal Court; though his views in some areas—for example, the death penalty and race-based affirmative action—moved somewhat left, he still departed the Court in 2010 as a moderately conservative justice. He always believed that government should have some power to restrict “indecent” speech, whether in granting radio licenses or allowing “adult” establishments in local communities, and he was adamant that the First Amendment need not protect those who burned the American flag as a political gesture. So intense was the Court’s rightward shift, however, that by the end of his career, Stevens was seen as a liberal, and operated for 16 years as the field marshal of the Court’s left side.
His majority opinions are important—especially his two decisions, Rasul v. Bush and Hamdan v. Rumsfeld, that required the executive branch to give legal protections to foreign detainees in the years after the September 11 attacks. But for the near future, it is the dissents that will serve as a springboard for criticizing Donald Trump–era jurisprudence.
When the Court crudely intervened to anoint George W. Bush president in 2001, Stevens (a lifelong Republican) wrote, “Time will one day heal the wound to that confidence that will be inflicted by today’s decision. One thing, however, is certain. 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.”
He bitterly dissented in District of Columbia v. Heller, in which the Court held, 5–4, that the Second Amendment’s “right to bear arms” protects an individual right to handgun ownership. Summarizing his opinion from the bench, he ridiculed the majority’s “rather grandiose” claim that it had found the “original understanding” of the amendment. “The principal draftsman of the amendment, James Madison—not men who wrote generations later and commentators and so [on], James Madison—and those who participated in the deliberations leading to the enactment of the amendment, considered and rejected proposals similar to those contained in some contemporary State Constitutions which the majority opinion quotes at length which would have protected non-military uses of weapons. Thus a fair analysis of the original intent of the framers of the amendment supports a narrower reading.”
Finally, on January 21, 2010, he read from the bench a dissent against Citizens United v. Federal Election Commission, which transformed American politics by opening the floodgates to mass expenditures by powerful corporations and political-action committees. The last World War II veteran on the Court, he critiqued the decision in terms that, for one of that generation, were deeply cutting. “The Court’s new rule,” he said, “would have accorded the propaganda broadcast to our troops by Tokyo Rose during World War II, the same threshold protection as a speech by General McArthur.” As Stevens read the Citizens United dissent, Court watchers noted an unusually hesitant quality in his usually fluent speech. In fact, he learned later, he had recently suffered a small stroke; as a result, he announced his retirement that April. President Barack Obama named then–Solicitor General Elena Kagan to succeed him. He left the bench a mere six months shy of Justice William O. Douglas’s record 36 years of service.
Stevens attracted many admirers and many critics, but—operating from a deep well of integrity and kindness—virtually no enemies. Retired from the Court for nearly a decade, he remained active, publishing three books and enjoying bridge, tennis, and Ping-Pong. In his writings and interviews, he did not hesitate to criticize a Court that, to him, seemed to have lost its way; last year, after the Supreme Court nominee Brett Kavanaugh’s testimony before the Senate Judiciary Committee, Stevens said publicly that he found Kavanaugh unfit to serve.
Though I taught his opinions for more than a decade before coming to the Court as a correspondent, I never met him. Yet something in his bluff presence—both as a writer of opinions and as a public figure—made me, and I suspect many others, feel that he was someone, even in an era of crass pretense and hypocrisy, I could safely admire and even trust. Justice Ruth Bader Ginsburg is not the only cultural figure to emerge from the Court; with his apple cheeks, twinkling eyes, and bright bow ties, Stevens was a living link to the great age of American law, and the American century that produced it.
To the end, he took the law and the Court seriously, but seemed not to feel much reverence for himself. After he resigned, he appeared on The Colbert Report and endured a sketch in which Colbert, in his persona as a dim-witted TV host, discovered once the cameras were rolling that Stevens was no longer on the Court. “Can we get one of the real Supreme Court justices?” Colbert stage-whispered to a producer. When the answer was no, Colbert asked Stevens to fix a speeding ticket for him.
“Are there any decisions you have made that you regret?” Colbert asked.
“Other than this interview?” Stevens replied.