I remember a variation on the second story, when Chief Justice Rehnquist corrected counsel for calling one of them Judge, and Justice Stevens commented: “it is an understandable mistake; the Constitution makes it, too.”
I think what distinguishes Justice Stevens from the other justices are his hypotheticals. They really force the advocate to understand the limits of his or her theory of the case.
My favorite was in NCAA v. Tarkanian, when he asked Tarkanian’s lawyer whether United Airlines would be a “state actor” for purposes of 42 U.S.C. 1983, if it told O’Hare Airport’s (a government entity) manager that United would move its planes to Midway Airport if O’Hare did not fire the O’Hare employee who was in charge of the terminal that United operated from. The lawyer stood there for more than 30 seconds saying nothing until Justice Scalia leaned forward and told him “the answer you are looking for is no.” In my judgment Justice Stevens always asked the hardest hypotheticals and he did it so gently that the effect was particularly devastating. — Carter Phillips
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