The Impartial Justice

As the Court shifted around him, John Paul Stevens endeavored to remain neutral, transparent, and focused on liberty.

A decade ago, Justice John Paul Stevens—who passed away yesterday at 99—told me he was a “judicial conservative.” Stevens, who was then widely seen as the leader of the liberal opposition on the Supreme Court, resisted the suggestion that he had become more liberal in his then-32 years on the high court. He insisted that it was the Court itself that had changed, becoming far more conservative over the past three decades.

In our conversation, three consistent themes in his jurisprudence emerged: his belief in the duty of the government to be neutral; the duty of judges to be transparent; and the need for judges to interpret the Constitution in light of the entire scope of its history, including the post–Civil War amendments, rather than stopping in the founding era. (Both the June 2007 interview and the New York Times Magazine article I produced from it offer more expansive accountings of his thought.)

Justice Stevens explored each of these themes in riveting detail in his new, 531-page book, The Making of a Justice: Reflections on My First 94 Years, published earlier this year. The book is perhaps the most candid account ever written by a sitting or retired justice about the internal deliberations in all the major cases decided during each year of his long tenure, from 1974 to 2010. The Making of a Justice confirms that Stevens’s concern with government neutrality, judicial transparency, and living constitutional originalism stemmed from early experiences in his astonishingly long and productive judicial career.

Above all, Stevens defined the rule of law as the obligation of the government to behave impartially instead of favoring one group over another for partisan or sectarian reasons. I asked him about the theme of anti-corruption in his background and opinions. “You don’t like people fired for patronage reasons, and you’re against political partisan gerrymandering. Tell me why you think that’s important,” I said. Stevens laughed. “Because it is. You’re right that in the gerrymandering business, it seems to me that one of the overriding principles in running the country is the government ought to be neutral. It has a very strong obligation to be impartial and not to use the power to advance political agendas or personal agendas. That’s just one of the most basic principles that cuts through all sorts of law.”

In our interview and in his book, Stevens traced his concern about government neutrality to the unjust prosecution of his father, Ernest J. Stevens, who in 1927 built the Stevens Hotel in Chicago, now the Chicago Hilton, for the then-staggering amount of $30 million. The Stevens was billed as the “largest and finest hotel in the world.”

Stevens experienced a gilded youth: At the age of 7, at the opening banquet for the hotel, he met the famous aviator Amelia Earhart, who gave him a dove and remarked that he was up late on a school night. Stevens and his young brothers appeared as nude models for the commemorative sculptures and ashtrays created for the opening of the hotel, posing next to large fish.

Still, the hotel went bankrupt in the Great Depression, and Stevens’s father, grandfather, and uncle were indicted for diverting money to make interest payments on hotel bonds from the Illinois Life Insurance Company, which was controlled by Stevens’s grandfather. In the face of the indictment, his grandfather suffered a stroke and his uncle committed suicide, leaving Stevens’s father the only defendant to stand trial. His father was initially convicted of embezzling $1.3 million, only to have his conviction overturned by the Illinois Supreme Court.

“A totally unjust conviction, I can assure you,” Stevens told me, and the experience of having rogue Chicago policemen break into his home and terrorize his family looking for supposedly hidden funds convinced Stevens of the dangers of governmental corruption. In his book, he writes, “In recent years, my firsthand knowledge of the criminal justice system’s fallibility has reinforced my conviction that the death penalty should be abolished.”

Stevens’s belief that the government has a duty to govern impartially united his apparently disparate votes to regulate racial gerrymandering and partisan gerrymandering, which he viewed as two sides of the same coin. As an appellate judge, he objected to the conclusion that the Roberts Court, by a 5–4 vote, embraced in June: that political gerrymandering is “non-justiciable”—that is, not reviewable by federal courts. As Stevens writes in his book: “I disagreed with the view that a stricter standard should be applied to discrimination against racial groups than to discrimination against other identifiable groups of voters … ‘Yet that is the logical consequence of an inflexible rule that “political” gerrymandering is not justiciable.’”

Stevens’s concern that all branches of government should behave impartially also led to his insistence on close judicial oversight of sweeping claims of the executive power. In his view, no president was above the law. He applied this principle to leaders of both parties, ruling against President George W. Bush in the War on Terror and against President Bill Clinton in Clinton v. Jones. Stevens was criticized for his prediction that Paula Jones’s suit against Clinton was unlikely to take up much of the president’s time. His response to 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!”

The second theme of Stevens’s jurisprudence was the need for judges to be intellectually honest and transparent about the reasons behind their decisions. He told me that this concern about judicial transparency arose from his service on a Chicago commission investigating judicial corruption in 1969. In the course of his investigation, of Illinois Supreme Court justices accused of deciding a case in exchange for a bribe, Stevens discovered that a third justice, not under suspicion for bribery, had originally written a dissent from the disputed decision, which he decided not to publish in the interest of maintaining collegiality.

“I have never agreed with that view,” Stevens wrote in his book. “I then thought, and still think, the public is entitled to know how every judge votes in an argued case. During my entire career on the bench, both on the court of appeals and on the Supreme Court, I followed the practice of either joining a colleague’s opinion or writing my own explanation for my vote.” In fact, on the Court, Stevens wrote more dissenting and separate concurring opinions than any of his colleagues, all of them outlining his legal reasoning in detail. And his experience with the commission of 1969 made him skeptical of Chief Justice John Roberts’s view that unanimity is itself a desirable goal.

In his book, Stevens lays bare the justices’ internal deliberations in case after case, publishing the internal memos he wrote to his colleagues in an attempt to win their votes. Perhaps the most dramatic example of this emphasis on transparency is his behind-the-scenes account of Bush v. Gore, a decision he deplored. Stevens revealed that he and his liberal colleagues originally thought the claims that the Florida recount in the 2000 election violated the Constitution were too frivolous to be worth considering. Only on the request of Justice Antonin Scalia did the Court hastily convene to consider a constitutional challenge that evolved so rapidly that the justices’ initial vote to stop the recount didn’t even give reasons for taking that step.

The equal-protection rationale that the Court eventually settled on, Stevens revealed, emerged only after the five conservative justices had voted to stop the recount, in an opinion ultimately drafted by Justice Anthony Kennedy. “One of the most remarkable features of the majority’s disposition of this entire litigation is the fact that its only written statement of reasons for staying the recount at all is set forth in [Scalia’s] hastily drafted response to my dissent from the order granting the stay,” Stevens writes. “I have no recollection of any discussion of the equal protection issue at our conference.”

Because Kennedy and his colleagues never discussed the factual basis for their late-breaking equal-protection rationale, Stevens said, he was unable to point out “a serious factual error with it as well as the total absence of precedent for it. The factual error is its misunderstanding of different versions of earlier rules that forbade the counting of dimpled chads while permitting hanging chads to be counted.” Stevens continues:

In the Court’s per curiam opinion, a critical paragraph makes the mistake of treating two different descriptions of hanging chads as though they represented two different categories of undervotes … Apparently oblivious of the fact that the first three versions of the Palm Beach County practice had all excluded dimpled chads and included hanging chads, the opinion then incorrectly stated, “This is not a process with sufficient guarantees of equal treatment.” In fact, the county’s 1990 standard was a reasonable means of discerning the intent of the voter. Any inconsistency was only the result of the court order to consider dimpled chads legal, a different but also plausible standard for deciding which ballots adequately conveyed the voter’s intent. The Court’s failure to appreciate the Florida court’s reliance on the “intent of the voter” as the controlling standard for the aborted recount sheds revelatory light on its flawed conclusion that the recount, if completed, would have violated the Equal Protection Clause. Had counties been permitted to follow the Florida Supreme Court’s mandate and to consistently apply the “intent of the voter” standard, that would have eliminated the prior variations and avoided any factual basis for concluding that during the recount different counties would be applying different standards.

Stevens objects that “the absence of a coherent rationale in the opinion probably explains why, during the succeeding years, the Court has never cited it as support for any legal proposition.” His conclusion: “As much as I wish that the public confidence that the Court had earned a few years earlier when it ordered President Nixon to produce tapes containing evidence of his wrongdoing could be so easily restored, I remain of the view that the Court has not fully recovered from the damage it inflicted on itself in Bush v. Gore.”

The third theme in Stevens’s jurisprudence was his insistence on protecting ideals of equality and liberty in light of the nation’s entire history, including the post–Civil War Reconstruction amendments, rather than focusing exclusively on the original understanding of the 1787 Constitution. Still, Stevens was always willing to go head-to-head with Justice Scalia on what he viewed as Scalia’s misconstruing of founding-era original understanding, especially in the Citizens United case, striking down campaign-finance reform, and the Heller and McDonald cases, recognizing an individual right to bear arms.

In his book, Stevens reproduces an extraordinary memo that he circulated to his colleagues before Scalia was able to circulate his majority opinion in the Heller case, in which he attempted in vain to argue that Scalia had misunderstood the original understanding of the Second Amendment:

The enclosed memorandum explains the basis for my firm belief that the Second Amendment does not impose any limit whatsoever on the power of the federal government to regulate the non-military use or possession of firearms. I have decided to take the unusual step of circulating the initial draft of a probable dissent before [Scalia] circulates his majority because I fear the members of the majority have not yet adequately considered the unusual importance of their decision …  The text of the amendment has not changed. The history leading up to the adoption of the amendment has not changed. The commentary by Story and the other nineteenth century commentators has not changed. There has been a change in the views of some law professors, but I assume there are also some professors out there who think Congress does not have the authority to authorize a national bank, or to regulate small firms engaged in the production of goods for sale in other states, or to enact a graduated income tax … This is not a case in which either side of the policy debate can be characterized as an “insular minority” in need of special protection from the judiciary. On the contrary, there is a special risk that the action of the judiciary will be perceived as the product of policy arguments advanced by an unusually powerful political force. Because there is still time to avoid a serious and totally unnecessary self-inflicted wound, I urge each of the Members of the majority to give careful consideration to the impact of this decision on the future of this institution when weighing the strength of the arguments I have set forth in what I hope will not be a dissent.

Stevens was unsuccessful in persuading his conservative colleagues in the Heller case, just as he was unsuccessful in Citizens United, which he called in his book “a disaster for our election law.” As Stevens writes:

One of the points that I made in my dissent was that if the majority were correct in arguing that the identity of a speaker is never relevant to the government’s ability to regulate his speech, the propaganda broadcasts to our troops by Tokyo Rose during World War II were entitled to the same constitutional protection as speech by Allied commanders. That part of my opinion may have led President Obama in his State of the Union message a few days later to include in his criticism of the Court opinion a comment on the fact that it enabled foreign corporations, as well as foreign stockholders of corporate donors of campaign funds, to have a voice in American elections. Sitting in the audience during that speech, Sam Alito incorrectly mouthed the words: “Not true.” Despite Sam’s protest, it is perfectly clear that if the identity of a speaker cannot provide the basis for regulating his (or its) speech, the majority’s rationale in Citizens United would protect not only the foreign shareholders of corporate donors to political campaigns but also foreign corporate donors themselves. Moreover, there is abundant evidence that nonresidents frequently contribute substantial sums to candidates for the Senate or for Congress. That practice obviously tends to undermine the ability of residents to choose their own representatives.

Stevens’s emphasis on government neutrality, judicial transparency, and a candid approach to constitutional history made him the leader of the liberal opposition on an ever more conservative court, but Stevens continued to view himself as a judicial conservative until his retirement. Although he refused to tell me whether he still considered himself a Republican, he said he was especially pleased by President Gerald Ford’s letter declaring that, of all his presidential accomplishments, he was proudest of having appointed Stevens.

“I am prepared to allow history’s judgment of my term in office to rest (if necessary, exclusively) on my nomination thirty years ago of Justice John Paul Stevens to the U.S. Supreme Court,” Ford had written two years before our interview, in 2005. “I endorse his constitutional views on the secular character of the Establishment Clause and the Free Exercise Clause, on securing procedural safeguards in criminal cases and on the Constitution’s broad grant of regulatory authority to Congress.”

When I read the letter to Stevens, he broke into a broad grin: “It was amazing to see that! I was delighted. I’m sure you understand.” Stevens then shared one unfulfilled ambition he had not achieved in a life that included helping to break the Japanese code during World War II and throwing the first pitch at Wrigley Field at the age of 85. As he describes it in The Making of a Justice:

I’m reminded of an unfulfilled ambition I formed while President Ford was still in office. Concern about my health following my coronary bypass operation had required me to surrender my pilot’s license a few months earlier, but after I was sworn in, I renewed my license and a friend flew my plane to Leesburg, Virginia, where I resumed flying on weekends on a regular basis. On one of those flights it occurred to me that President Ford might enjoy joining me on such a Saturday afternoon outing. It would have been especially gratifying to have him aboard because his presence aloft in my plane would have required the redesignation of “Cessna 88-Foxtrot” when communicating with an airport control tower to “Air Force One.” I still sometimes wonder whether he might have enjoyed such a flight.