John Paul Stevens
This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.
The death of Justice John Paul Stevens offers a moment to reflect on one of our favorite facts about the sages who sit on our highest tribunal. It has to do with the limited ability of our presidents and senators to foresee how judges are going to rule once they gain a lifetime mandate at the apex of our judiciary. For the most liberal justice of our recent era turns out to have been a Republican.
We know, we know, he wasn’t named for his partisanship. The Times stressed this point in its obituary. It quoted President Ford as saying that he sought “the finest legal mind” he could find. And as adding that, even after Justice Stevens emerged as the leader of the liberal wing of the court, Ford was prepared to stake his presidential reputation on his appointment of the bow-tie wearing liberal lion.
What a difference from before the Democrats savaged President Reagan’s nomination of Judge Robert Bork to the high bench and opened the modern era of confirmation wars. The Times points out that even though Stevens was nominated but two years after Roe v. Wade, the justice-to-be wasn’t asked at his confirmation hearing even once about abortion. He was confirmed unanimously.
Who knew that Stevens would lead the liberal faction of the court in arguing that a small religious charity lacked the right to air in an election season a documentary criticizing Senator Hillary Clinton? In any event, his dissent in Citizens United, joined by Justices Ginsburg, Breyer, and Sotomayor, is likely to serve as the epitaph for the liberal camp’s commitment to the First Amendment.
Stevens called the majority opinion a “rejection of the common sense of the American people.” The common sense doctrine sounds folksy. Stevens used it in Citizens United, though, to pitch for a breathtaking grant of authority to the courts to override the plain language of the Rights Bill. If the Founders had wanted to grant legal superiority to common sense, after all, what would they have needed with a written Constitution in the first place?
We understand this is a debate in which Stevens wrote a long (he was the third-longest serving justice) and venerable chapter. He was, we gather, greatly admired by his fellow justices (he was chosen to swear in the Chief Justice of the United States, John Roberts). And we understand that Stevens was capable of upstaging even a chief justice on the plain language of the Constitution.
One of our favorite stories in respect of Stevens’ years on the bench happened in open court, when a lawyer appearing before the justices for the first time began her response to a question from Justice Kennedy by saying, “Well, Judge …” only to be brought up short by Chief Justice Wm. Rehnquist. “That’s Justice Kennedy,” Rehnquist snapped.
The lawyer, though shaken, plunged on, only to respond, a few minutes later to a question from Associate Justice Souter by saying, “Yes, Judge.” Again the Chief Justice momentarily stopped the proceeding to correct her, saying: “That’s Justice Souter.” Then, a couple of minutes later, our hapless heroine referred to Chief Justice Rehnquist himself as a judge.
The Chief Justice, according to an account in the Times by Stanford law professor Jeffrey L. Fisher, who’d clerked for Stevens, “leaned forward, his deep voice now at its sternest, to say, ‘Counsel is admonished that this court is composed of justices, not judges.’” Before the lawyer could say anything, though, Stevens interjected: “It’s O.K., Counsel. The Constitution makes the same mistake.”
Stevens was referring to Article III, Section 1, which says, “The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour.” The story brought forth from us a rush of affection for Stevens, showing as it did the gumption to upstage the Chief Justice, considerateness for a lowly lawyer, and attention to the actual language of the parchment. We need more of all three.
Image: Detail of an official photograph, United States Supreme Court.