justicestevens

The Search for a Bridge Builder

Gathering my thoughts on the Stevens retirement announcement today, my first concern is for what Justice Ruth Bader Ginsburg told me and my research associate, Gene Schlickman, when we interviewed her for our book in her chambers.

Ginsburg said the rift between the liberals and conservatives has widened on the Supreme Court to the point of hurting the cross-fertilization of ideas in handling cases. This is really bad news. The biggest concern of America now regarding the Supreme Court should not be whom President Obama will appoint -- there is little chance he will pick a loser -- but how to heal that rift.

Stevens has built bridges for years through the power of his intellect, his ability to discern novel approaches to legal impasses and his ability to communicate quickly, fairly and gracefully with fellow justices.

In that sense, he and his contribution to the Court cannot be replaced any time soon. Obama needs to find a skillful law practitioner who is conciliator, not an ideologue -- that's Stevens's legacy. On a practical point, Obama should start my finding someone who is skillful, incisive and quick writer of legal analysis and interpretation. — Bill Barnhart

More on Stevens and His Style on the Bench

In the heat of oral argument, it can be hard for lawyers arguing before the Supreme Court to know which Justice is addressing them. But when the Justice softly inquired, "May I ask you a question?" lawyers always knew it was Justice Stevens. For one thing, Justice Stevens did, in fact, ask questions -- real, not rhetorical, ones, designed to elicit answers and not to score debating points. For another, Justice Stevens asked his questions politely, treating the lawyers before him with courtesy and respect.

The Justice's courtly and somewhat formal manners are noteworthy in themselves; the point of good manners, after all, is to make the people around you feel valued and welcomed, and both on and off the bench, Justice Stevens had the best manners I have ever seen. But Justice Stevens' questioning at argument also revealed something deeper: the importance he attached to treating all people with respect and equal regard -- the value that animated his decisions, as well. — Pamela Harris

Stevens: A Tough Questioner

As the ranking liberal serving under conservative Chief Justices for the past 15-plus years, Justice Stevens has typically had the power to assign opinions whenever the Chief Justice has not.

That authority, and a strong (but not infallible) ability to hold majorities together for difficult cases, has given him the authorship of an unusual number of high-profile and noteworthy opinions during his recent tenure.

Even a very incomplete list gives an impression of the large number of significant opinions he has written: seminal administrative law cases such as Chevron v. NRDC and Massachusetts v. EPA, the intellectual property case Sony Corp v. Universal City Studios (which made clear that making individual videotapes of television programs did not constitute copyright infringement), important war on terror precedents such as Rasul v. Bush and Hamdan v. Rumsfeld, important criminal law cases such as Padilla v. Kentucky (holding that defense counsel must inform the defendant if a guilty plea carries a risk of deportation) and Atkins v. Virginia (which reversed precedent to hold it was unconstitutional to impose capital punishment on the mentally retarded), and of course Apprendi v. New Jersey (which revolutionized criminal sentencing by holding that the Sixth Amendment right to jury trial prohibited judges from enhancing criminal sentences beyond statutory maximums based on facts other than those decided by a jury beyond a reasonable doubt).

But as an advocate, the noteworthy thing about Stevens’ departure will be his absence from oral argument. He is the last remnant of the Burger Court, which, while livelier questioners than the Warren bench, were far less active questioners than the Rehnquist and Roberts Courts. Perhaps as a result (or perhaps just because he’s smart and experienced enough to figure out what truly matters), he generally asks fewer questions than most his colleagues and gives the advocates more room to speak. His departure will mean that everyone on the bench considers the norm to be the much more active questioning of recent years.

But that is not to say that Justice Stevens is not a tough questioner. To the contrary, in my experience, his questions were always among the most difficult and incisive that I had to answer. They cut to the heart of the matter and leave no room to hide. They’re made no easier although they’re asked cordially, often preceded by the request, “May I ask you this question?” To the people in the courtroom, it seems like a disarmingly humble gesture, as though the person who has been the senior associate Justice for well over a decade really doesn’t want to intrude too much at oral argument. But to those at the podium, who know he’s about to uncork one of the toughest questions of the day, it is a gut-tightening experience, as the advocate mentally reviews the toughest questions he or she has woodshedded in dread of what he is about to ask. I was always relieved when my answer to one of his questions was interrupted—as it always was—by one of his colleagues.

One other thing that has always impressed me about him was his dissents. He has frequently been the lone dissenter, particularly in criminal cases where he writes in favor of the defendant, even when the arguments arrayed against his position are so formidable that his colleagues have joined the majority and moved on. It is almost as though he feels compelled to make the best case possible on behalf of the defendant’s position, if only for the record. — John Elwood

Re: A Litmus Test for Retirement

Todd's point is right on. In the last chapter of my upcoming Stevens's biography ("John Paul Stevens: An Independent Life"), I offer a layman's list of points to consider when nominating someone to the Supreme Court. Here it is:

"Good writers are good thinkers. Any appellate court judge who lets his or her clerks write opinions should automatically be disqualified for higher judicial office. Obtain testimony [from the candidate and former clerks] on this point. As Stevens told his law clerk Lawrence Rosenthal, 'I'll do the first drafts. Sometimes you can be totally unsure how a case is supposed to come out until you sit down and write.' Roger J. Traynor, former chief of the California Supreme Court, put it this way: 'I have not found a better test for the solution to a case than its articulation in writing, which is thinking at its hardest. A judge ... often discovers his tentative views will not jell in the writing.'" — Bill Barnhart

Personal Experiences Influenced Opinion Writing

The excellent interview with Justice John Paul Stevens in the April 4 New York Times by Adam Liptak contains several fresh, at least to me, comments by a man who rarely gives interviews and, when he does, often sticks to remarks he's made before in speeches.

For example, Stevens's thoughts on his opinion in the 2008 Baze v. Rees capital punishment case seemed, for the first time I've seen, to dispel the notion that Stevens is inching toward an absolute rejection of the death penalty as his time on the Court nears an end.

But the most interesting comment for me was his acknowledgment that his personal experiences have influenced his opinion-writing. Besides being an indirect endorsement of a biographer's labors, this comment is important for two reasons. First, Stevens's former law partner and long-time friend Edward Rothschild once told me in no uncertain terms that Steven's personal background didn't matter -- to his work as a judge or to the public. I didn't agree, of course.

But I was aware that, aside from a handful of recollections -- such as his memory of being in Wrigley Field when Babe Ruth signaled an upcoming home run to fans in the bleachers -- Stevens does not dwell on the past.

Indeed, one characteristic of a pragmatist is the tendency to look forward with optimism. The second reason Stevens's remark to Adam Liptak is important is that it signals that Stevens, who by design has been out of the public spotlight, in retirement might turn his formidable writing skills to a memoir that would inspire and instruct future generations of lawyers and judges as well as presidents and senators who have the duty to nominate and confirm federal judges. — Bill Barnhart

A Litmus Test for Retirement

In a recent April, 2010 interview with New York Times columnist Adam Liptak, Justice Stevens revealed one of the litmus tests that he would use to determine whether it was time to leave the Court.

"One of the tests I had for myself as to when I would retire was that if I ever got to the point that I stopped writing the first draft that would be a sign that I was no longer up to the job the way I think it should be done."

While Stevens quickly added that he was still drafting his own opinions, I find it fascinating that one of the yardsticks the Justice used to measure whether to retire imposed a standard that the other eight justices on the Supreme Court can't meet.

Until his retirement, Justice Stevens was the last link to a tradition of opinion writing that stretched back to the very creation of the Supreme Court. Think of Oliver Wendell Holmes, Jr., standing at his grandfather's writing desk - fountain pen in hand and surrounded by a halo of cigar smoke. Or Hugo Black, sitting in his study in his Alexandria townhouse and explaining to his law clerks how Supreme Court opinions should be written so as to be understood by the man on the street.

The current justices maintain that the practice of having law clerks prepare opinion drafts is not a troubling delegation of authority, but is merely a useful and efficient means of starting the opinion writing process. One wonders, however, is something more unique and important has been lost with retirement of Justice Stevens and the end of this aforementioned tradition of opinion writing. — Todd Peppers