justicestevens

Who or What Changed?

Did Justice Stevens change or did the Court change? My co-bloggers may be interested in debating this from a doctrinal perspective. But the data seem clear: Beginning in the mid-to-late 1980s, Justice Stevens moved substantially to the left.

The graph below uses measures (http://mqscores.wustl.edu/) developed by Andrew Martin and Kevin Quinn to plot the ideology of Justices Stevens, Kennedy, and Scalia: the higher the number, the more conservative the justice.

Note Justice Scalia's slight rightward drift and Justice Stevens' more extreme movement to the left. As for the Court's center, Justice Kennedy, not much in the way of drift in either direction. — Lee Epstein

The Hardest Hypotheticals

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

Three More Anecdotes from Clerks

Sonja's post inspires 3 more clerk-nurtured anecdotes, each recounted in my 2006 article, John Paul Stevens, Human Rights Judge:

• On arriving in Washington in 1975, Stevens listed his occupation as "Justice" on a form, thus drawing the retort, "OK, last week, I had a guy who said 'Peace.'"

• At an oral argument during the 1998 term, an advocate addressed a robed inquisitor as "Judge," and so provoked a withering reminder that the Court comprised "Justices." No one spoke up. But when the scene repeated itself days later, Justice Stevens, who had expressed unease at the first exchange as soon as he returned to chambers, provided this accurate citation to the U.S. Constitution: "Excuse me, but if I am not mistaken, Article III refers to us as judges."

• One time, walking into a Court reception, Stevens relieved a law clerk of the task another Justice had assigned her: serving coffee to that Justice and the other men in the room. "Thank you for taking your turn with the coffee," Stevens told her. "I think it's my turn now." — Diane Marie Amann

An Enormous Black Eye

I've really enjoyed reading the many and varied perspectives on Justice Stevens' jurisprudence and his impact on the Court. But as his former clerk and, I like to feel, as his friend, my mind since the announcement has been on some of the lighter moments we shared in chambers. One that comes to mind was the day Justice Stevens showed up in chambers with an enormous black eye. The injury was the result of an overly aggressive game of tennis in which he dove into a chain link fence while chasing a ball (he was almost 80 at the time.) We asked him what we should tell the other justices' clerks, whom we knew would be dying for information. He thought for a moment: “Tell them, ‘they should see the other guy!'” Shortly thereafter he attended a judicial conference and was again asked about the black eye. This time he replied, “that’s why they keep the conferences confidential.” — Sonja West

The last common law justice?

In the latest edition of The National Law Journal is an essay from Rodger D. Citron, an associate professor of law at Touro College Jacob D. Fuchsberg Law Center, who argues that Justice Stevens may be the last justice with a common law outlook. The full essay is at NLJ.com.

Here’s an excerpt:

“The focus on the political implications of Stevens' retirement obscures a more significant aspect to his departure: the loss of the Supreme Court's pre-eminent common law ­lawyer. Since his appointment to the Court in 1975, Stevens has decided cases in the manner of the quintessential common law judge. He generally decides cases narrowly, with careful attention to the facts of the particular case and primary attention paid to the contentions of the litigants. This approach is consistent with the common law notion that the law develops on a case-by-case basis over time.

Furthermore, although Stevens does not shy away from exercising judicial power, he nevertheless employs it in moderation, deferring to other legal decision-makers where appropriate. No other justice is as committed to the common law approach as Stevens. On the right, justices Antonin Scalia and Clarence Thomas are devout ­originalists, committed to deciding cases in accordance with their views of what the framers of the Constitution intended. Roberts — usually joined by Justice Samuel Alito Jr. — tends to be an ideological conservative. Justice Anthony Kennedy often decides cases in sweeping terms — even when the result is liberal, as in Lawrence v. Texas, which invalidated criminal laws outlawing homosexuality.

On the left, the distinctions are not as clear but are nevertheless evident. Justice Stephen Breyer often shares Stevens' views but is willing to go one step further and decide the case in accordance with his views of the appropriate policy. Justice Ruth Bader Ginsburg shares Stevens' attention to detail and nuance but tends to be more constrained about the exercise of judicial power. As for Justice Sonia Sotomayor, it's too early to tell.”