justicestevens

A Missing Word: Empathy

I think what's most interesting about President Obama's discussion of a future nominee is the quality he did not say he would look for — empathy. Clearly the President isn't going to re-ignite the controversy that erupted last year after he announced he wanted a nominee with empathy to replace Justice Souter. But the retirement of Justice Stevens highlights that this is exactly the trait we need more of on the Court. While he has lived his life as a member of the majority and privileged in almost every way, Justice Stevens has always demonstrated the ability to put himself in someone else's shoes. He could imagine how things might appear to someone who was very different than he whether it was because he or she had a different skin color, gender, religion or sexual orientation. He didn't use this ability to warp his interpretation of the law but to enhance it with the understanding that everything can look a little different based on one's perspective. I think empathy is an eminently valuable trait in a judge, and Justice Stevens had it in spades. To truly find a nominee in Stevens' mold, President Obama should once again seek out someone with empathy. — Sonja West

The Justices on Stevens

From our sibling Blog of Legal Times, a rundown of the justices' statements on John Paul Stevens and his retirement.

Criminal Procedure: An Undervalued Part of Stevens’ Legacy

I want to follow up on John's very perceptive insight about Justice Stevens' opinions in criminal cases.

I think those opinions -- sometimes holding together a fragile majority (as in the Gant case last Term) and more often in dissent -- are an important and undervalued part of the Justice's legacy. For many years, Stevens has been the Justice most often sympathetic to defendants' arguments, especially in criminal procedure cases.

Just this Term, in the two Miranda cases decided so far, he has been the only Justice to vote for a fuller understanding of Miranda protections in one, and one of two dissenters in the other. And even in dissent, Justice Stevens' opinions played an important role, ensuring that a more defendant-protective perspective, driven in part by concerns about the potential for race discrimination in law enforcement, remained a part of the legal discussion.

When people predict that Justice Stevens' replacement will leave the Court unchanged ideologically, I wonder whether they are including the Court's criminal docket in that assessment. I do not take for granted that a new Justice will be as prepared as Justice Stevens was to take a skeptical look at the exercise of government power in criminal cases. And if not, then this is one area in which Justice Stevens' absence will be felt especially keenly. — Pamela Harris

Steeped in Tradition

President Obama's statement zeroes in on the first part of Justice John Paul Stevens' one-sentence letter of resignation. Also worth considering is the letter's second part, which states that the retirement will be "effective the next day after the Court rises for the summer recess this year."

That formal phrasing hearkens to centuries of Supreme Court history, and serves as a reminder of Justice Stevens' commitment to the past, present, and future of that institution. Reflections of that commitment may be found, to cite two examples, in "Join me," the tradition-laden phrase Stevens uses to signal his own joining of a colleague's draft opinion, and in "I respectfully dissent," a standard signature on many Stevens opinions.

The commitment was evident, too, in Stevens' public statement, made just a month after the presidential inauguration of Barack Obama, that the President should come to the Court to swear in new Justices, rather than ask Justices to come to the White House.

Stevens' statement had the desired effect: upon the confirmation of Sonia Sotomayor, Obama became the first President in years to go to the Court to administer the oath to a new Justice.

Thus did Obama pay respect to Justice Stevens' view that this gesture honors values of separation of powers and judicial independence embedded in our Constitution. For a Justice steeped in the tradition of the institution he serves, the was is no small thing. As I wrote at the time: "It is on such niceties that the rule of law rests." — Diane Marie Amann

A Lesson on Assignments

Walter's post raises an interesting issue about Justice Steven's use of the assigning power to try to keep a wobbly Justice on board. He may have learned a lesson in that regard from October Term 1999's Boy Scouts of America v. Dale.

There's some circumstantial evidence that Justice Stevens was writing the majority opinion in Dale that would have held that the Boy Scouts did not have a First Amendment free association right to exclude gay scoutmasters, but lost the majority opinion to Chief Justice Rehnquist after one of the Associate Justices changed his or her vote. (Stevens had no majority opinion from that sitting; Rehnquist had two, and the other one was the majority opinion in the Miranda blockbuster Dickerson v. United States; and to my eyes at least, Stevens' dissent, with its detailed statement of facts, reads like a converted majority opinion.)

But it's unclear to me how well that works: the Blackmun papers indicate that Justice Kennedy switched sides in Lee v. Weisman while writing the majority opinion that Chief Justice Rehnquist had assigned to him. — John Elwood

Chief Justice of the Liberal Supreme Court

Of Justice Stevens’ 35 years on the Court, the past 15 years have been the most significant.

For those 15 years, John Stevens has essentially been the Chief Justice of the Liberal Supreme Court. In 1994, at the age of 74, he became the senior Justice on the Court, and for that time he has functioned very effectively as the leader of the liberals on the Court.

As senior Justice, he has had the power to assign opinions whenever the Chief Justice was in dissent. Thus, when Justices Stevens, Souter, Ginsburg and Breyer had the support of Justices O’Connor or Kennedy, Stevens controlled the assignment of opinions, a power he used with great skill.

Sometimes he assigned the opinion to himself, as he did in Hamdan v. the United States. But more important were the cases in which he gave up the privilege of writing the opinion in landmark cases in order to secure and shaky majority. In Grutter v. Bollinger, he assigned the opinion upholding Michigan Law School’s affirmative action program to Justice O’Connor whose uncertain vote was critical to the 5-4 majority.

And it was particularly selfless for Justice Stevens to assign the historic gay rights opinion in Lawrence v. Texas not to himself but to Justice Kennedy. History most often remembers Justices for the famous majority opinions they write, and Stevens could have chosen the honor of writing Lawrence for himself. Assigning the opinion of the Court to Justice Kennedy may have had the virtue of securing a majority.

(It is also possible that Kennedy was solid all along and Stevens just wanted to give the honor of this historic opinion to a colleague, and if that is the case, it shows how generous and selfless he can be.) — Walter Dellinger

Stevens on Political Speech

Regarding the “voices of ordinary citizens,” one of the cases highlighted in John Paul Stevens: An Independent Life is Burson v. Freeman (1992). It’s a relatively obscure case concerning the power of states (Tennessee, in this case) to prohibit electioneering within a certain number of feet of polling places on election day.

You might call this case the flip side of Citizens United v. FEC. The Tennessee Supreme Court had ruled that a 100-foot no-electioneering zone around polling places was a violation of free speech. The state appealed to the Supreme Court. The result was a noteworthy and lengthy (nearly eight months) debate between Justices Scalia and Stevens (with Justice Blackmun in the middle) over tradition in law vs. pragmatism in law.

Stevens is a long-time advocate of virtually unlimited free political speech by “ordinary” Americans. Scalia, taking the side of legal tradition, argued that “restrictions of speech around polling places on election day are as venerable a part of the American tradition as the secret ballot” and therefore do not deserve or require strict scrutiny by the Court under the First Amendment. Scalia was on the side of the majority led by Justice Blackmum, to reverse the Tennessee Supreme Court. But his proposed concurrence – which seemingly granted immunity from strict scrutiny to anything labeled “traditional” -- took the case in a new direction that Blackmun thought was dangerous.

Stevens pointed out that laws limiting access to the polls historically were part of efforts to keep African Americans from voting. His point of view eventually prompted Blackmun to inform Scalia that he opposed the proposition that “a law can pass strict scrutiny because history says it does.” No-electioneering zones tend to favor the “ins” at the expense of the “outs,” Stevens wrote in his dissent. “The hubbub of campaign workers outside the polling place may be a nuisance, but it is also the sound of a vibrant democracy.” — Bill Barnhart

Stevens: From Maverick to Alliance Builder

Any assessment of Justice Stevens has to start with the man – unfailingly courteous, both off the bench and on (Justice Stevens sometimes seemed almost to apologize for interrupting an advocate to ask a question during argument); not an ounce of self-importance; entirely comfortable in his own skin; and in remarkable physical and mental shape for someone about to turn 90. I argued my first case in the Supreme Court 25 years ago – Justice Stevens looks just as fit and if anything is sharper in his questioning than he was then. I’m quite sure I can’t say the same thing about myself.

The Justice’s role on the Court saw a remarkable evolution during his 34 years. In the first part of his tenure, Justice Stevens was something of a maverick, taking his own often quite distinctive path to resolving numerous legal issues. A mark of Justice Stevens’ approach then is the large number of separate opinions he wrote each year. In the 1980 Term, for example, when most Members of the Court wrote twice as many concurring and dissenting opinions as opinions for the Court, Justice Stevens wrote almost four times as many separate opinions as he wrote opinions for the Court.

After the retirements of Justices Brennan and Marshall, however – and even more so after Justice Blackmun left the Court, Justice Stevens worked to forge alliances with more conservative Members of the Court. He had many notable successes – in the Court’s recent series of decisions related to the war on terror; in limiting federal preemption of state law (Wyeth v. Levine); upholding federal campaign finance laws (McConnell v. FEC); and in the environmental area (Massachusetts v. EPA). Of course, he also has had some significant losses – for example, on school desegregation (Parents United); the Second Amendment (Heller); and campaign finance (Citizens United).

That role will now fall to Justices Ginsburg and Breyer. And only time will tell whether they will be able to reach out to other members of the Court with the same skill and effectiveness as Justice Stevens. — Andrew Pincus

Obama's Statement on Stevens

"When President Ford was faced with a Supreme Court vacancy shortly after the nation was still recovering from the Watergate scandal, he wanted a nominee who was brilliant, non-ideological, pragmatic, and committed above all to justice, integrity, and the rule of law. He found that nominee in John Paul Stevens.

Justice Stevens has courageously served his country from the moment he enlisted the day before Pearl Harbor to his long and distinguished tenure on the Supreme Court. During that tenure, he has stood as an impartial guardian of the law. He has worn the judicial robe with honor and humility. He has applied the Constitution and the laws of the land with fidelity and restraint. He will soon turn 90 this month, but he leaves his position at the top of his game. His leadership will be sorely missed, and I just had an opportunity to speak with him and told him on behalf of a grateful nation, that I thanked him for his service.

As Justice Stevens expressed to me in the letter announcing his retirement, it is in the best interests of the Supreme Court to have a successor appointed and confirmed before the next term begins. And so I will move quickly to name a nominee, as I did with Justice Sotomayor.

Once again, I view the process of selecting a Supreme Court nominee as among my most serious responsibilities as President. And while we cannot replace Justice Stevens’ experience or wisdom, I will seek someone in the coming weeks with similar qualities -- an independent mind, a record of excellence and integrity, a fierce dedication to the rule of law, and a keen understanding of how the law affects the daily lives of the American people. It will also be someone who, like Justice Stevens, knows that in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens. Much like they did with Justice Sotomayor, I hope the Senate will move quickly in the coming weeks to debate and then confirm my nominee so that the new Justice is seated in time for the fall term."

'A Stalwart' on Civil Rights

John Payton, President and Director-Counsel of the NAACP Legal Defense and Educational Fund, released this statement earlier today:

"Justice Stevens' decades on the Court will be recorded in history as one of the most remarkable legacies in recent years. Justice Stevens is known as a stalwart in his protection of civil rights and civil liberties.

For racial minorities and others who relied on the courts to secure full participation in our democracy, Justice Stevens will be missed. By waiting to retire until the age of 90, Justice Stevens surpassed any expectation of public service in the federal judiciary. We thank him for his tremendous contribution to the cause of justice and wish him a joyful retirement.”