It was my privilege to serve as Justice John Paul Stevens’s law clerk during the tumultuous 2000 term, the year the Court inserted itself into the presidential election, halting the recount of votes in Florida’s contested race and handing the presidency to George W. Bush.
Like many other Americans, I was disillusioned by the seemingly lawless nature of the Court’s intervention. That experience was redeemed, however, by the opportunity to observe Justice Stevens at work. In Bush v. Gore and every other case that term, Stevens exercised his duty in a conscientious and principled way. And he did it with a humility that continues to inspire me.
Even after decades on the highest court, Stevens remained a lawyer’s lawyer. He wrote the first drafts of all his opinions—a task most justices delegate to their clerks—and he seemed to revel in the subtleties of each case with a litigator’s glee. He devoted a lot of time and attention to the “fact” section of his opinions. When working on a case, he would wander into the clerks’ office toward the end of the day to talk. An avid sports fan, he would frequently begin these conversations with some discussion of the latest Redskins debacle or his fantasy golf league. But then he would steer the subject toward the cases at hand, bouncing legal theories off the clerks or marveling at some new factual detail he had discovered in the record.
Although commentators frequently referred to Stevens as the Court’s most “liberal” justice, he rejected that label. He was not ideologically driven. Rather, the hallmarks of his judicial philosophy were a commitment to fairness and an abiding faith in the act of judging. He arrived at decisions after a careful study of the facts in each case, a method that made his jurisprudence quirky and unpredictable. For example, a champion of speech rights, he was nonetheless the sole dissenter in the case striking down a Texas prohibition on flag burning. In the highly contentious and politically charged area of property rights, Stevens sometimes sided with the government, but at other times, depending on the details in the case, with property owners. When the Penn Central Transportation Company, owner of Grand Central Terminal, challenged New York City’s popular landmark-preservation statute (which frustrated the company’s plan to build an office tower atop the station), Stevens sided with the dissenters, arguing that the landmark-designation process unfairly singled out individual property owners and made them bear crippling financial burdens. On the other hand, Stevens was willing to rule in the government’s favor in cases protecting wetlands when the regulatory burdens operated through more generally applicable rules—ones he considered less prone to unfairness and abuse.
Stevens was a cautious judge, in the best tradition of the common law. He eschewed sweeping pronouncements in favor of an incrementalism that respected precedent and also preserved space for future judicial discretion. On a Supreme Court where judicial modesty was espoused (at least at confirmation hearings) far more than it was practiced, Stevens stood out for his consistent reluctance to arrogate power to the Court. His most cited opinion, Chevron v. Natural Resources Defense Council (1984), affirmed a rule of judicial deference toward the expert judgment of administrative agencies. His much-criticized (though, I think, correct) opinion in Kelo v. New London (2005) reflected a similar judicial modesty. Although a well-orchestrated public-relations campaign demonized the Court’s decision in Kelo, saying it eviscerated private-property rights, Stevens and the narrow 5-4 majority followed decades of precedent upholding the use of eminent domain for economic development purposes. Refusing to take the politically popular position, Stevens’s opinion was premised on the deference that unelected federal judges owe to local governments and state courts.
In his pithy dissent in Bush v. Gore, Stevens warned that, “although we may never know with complete certainty the identity of the winner of this year’s presidential election, the identity of the loser is perfectly clear. It is the nation’s confidence in the judge as an impartial guardian of the rule of law.” Those of us lucky enough to have worked for Justice Stevens never doubted his abilities as an impartial guardian. And we have taken comfort in his continued presence on the Court. No matter who replaces him, his departure is a loss for the institution and for the country.
