John Paul Stevens

Judicial philosophy

On the United States Court of Appeals for the Seventh Circuit, Stevens had a moderately conservative record. Early in his tenure on the Supreme Court, Stevens had a relatively moderate voting record. He voted to reinstate capital punishment in the United States and opposed race-based admissions programs, such as the program at issue in Regents of the University of California v. Bakke, 438 U.S. 265 (1978). However, on the more conservative Rehnquist Court, Stevens joined the more liberal justices on issues such as abortion rights, gay rights and federalism. His Segal–Cover score, a measure of the perceived liberalism/conservatism of Court members when they joined the Court, places him squarely on the conservative side of the Court. However, a 2003 statistical analysis of Supreme Court voting patterns found Stevens the most liberal member of the Court. President Ford expressed no regrets about Stevens's drift toward liberalism, writing in a 2005 letter to USA Today, "Justice Stevens has made me, and our fellow citizens, proud of my three decade old decision to appoint him to the Supreme Court."

Stevens's jurisprudence has usually been characterized as idiosyncratic. Stevens, unlike most justices, reviewed petitions for certiorari within his chambers instead of having his law clerks participate as part of the cert pool and usually wrote the first drafts of his opinions himself; when asked to explain why, he said: "I'm the one hired to do the job." He further explained that he continued to learn about cases and legal theories as he drafted his opinions and re-evaluated his positions on cases while writing.

He was not an originalist (such as Antonin Scalia) nor a pragmatist (such as Justice Stephen Breyer), nor did he pronounce himself a cautious liberal (such as Justice Ruth Bader Ginsburg). He was considered part of the liberal bloc of the Court starting in the mid-1980s, and was dubbed the "chief justice of the liberal Supreme Court", though he publicly called himself a judicial conservative in 2007.

In Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985), Stevens argued against the Supreme Court's famous "strict scrutiny" doctrine for laws involving "suspect classifications", putting forth the view that all classifications should be evaluated using the "rational basis" test as to whether they could have been enacted by an "impartial legislature". In Burnham v. Superior Court of California, 495 U.S. 604 (1990), Stevens demonstrated his independence with a characteristically pithy concurrence.

Stevens was once an impassioned critic of affirmative action; in addition to the 1978 decision in Bakke, he dissented in the case of Fullilove v. Klutznick, 448 U.S. 448 (1980), which upheld a minority set-aside program. He shifted his position over the years and voted to uphold the affirmative action program at the University of Michigan Law School challenged in Grutter v. Bollinger, 539 U.S. 306 (2003).

Stevens wrote the majority opinion in Hamdan v. Rumsfeld in 2006, in which he held that certain military commissions had been improperly constituted. He also wrote a lengthy dissenting opinion in Citizens United v. FEC, arguing the majority should not make a decision so broad that it would overturn precedents set in three previous Supreme Court cases. When reviewing his career at the Supreme Court in his 2019 book, The Making of a Justice: Reflections on My First 94 Years, Stevens lamented being unable to persuade his colleagues against the decision in Citizens United, which he described as "a disaster for our election law."

Freedom of speech

Stevens's views on obscenity under the First Amendment changed over the years. He was initially quite critical of constitutional protection for obscenity, rejecting a challenge to Detroit zoning ordinances that barred adult theaters in designated areas in Young v. American Mini Theatres, 427 U.S. 50 (1976), ("[E]ven though we recognize that the First Amendment will not tolerate the total suppression of erotic materials that have some arguably artistic value, it is manifest that society's interest in protecting this type of expression is of a wholly different, and lesser, magnitude than the interest in untrammeled political debate"), but later in his tenure adhered firmly to a libertarian free speech approach on obscenity issues, voting to strike down a federal law regulating online obscene content considered "harmful to minors" in ACLU v. Ashcroft, 535 U.S. 564 (2002). In his dissenting opinion, Stevens argued that, while "[a]s a parent, grandparent, and great-grandparent", he endorsed the legislative goal of protecting children from pornography "without reservation", "[a]s a judge, I must confess to a growing sense of unease when the interest in protecting children from prurient materials is invoked as a justification for using criminal regulation of speech as a substitute for, or a simple backup to, adult oversight of children's viewing."

Perhaps the most personal and unusual feature of his jurisprudence was his continual referencing of World War II in his opinions. For example, Stevens, a World War II veteran, was visibly angered by William Kunstler's flippant defense of flag-burning in oral argument in Texas v. Johnson, 491 U.S. 397 (1989) and voted to uphold a prohibition on flag-burning against a First Amendment argument. Stevens wrote, "The ideas of liberty and equality have been an irresistible force in motivating leaders like Patrick Henry, Susan B. Anthony, and Abraham Lincoln, schoolteachers like Nathan Hale and Booker T. Washington, the Philippine Scouts who fought at Bataan, and the soldiers who scaled the bluff at Omaha Beach. If those ideas are worth fighting for—and our history demonstrates that they are—it cannot be true that the flag that uniquely symbolizes their power is not itself worthy of protection from unnecessary desecration."

Stevens generally supported students' right to free speech in public schools. He wrote sharply-worded dissents in Bethel v. Fraser, 478 U.S. 675 (1986) and Morse v. Frederick, 551 U.S. 393 (2007), two decisions that restricted students' freedom of speech. However, he joined the Court's ruling on Hazelwood v. Kuhlmeier, 484 U.S. 260 (1988) which upheld a principal's censorship of a student newspaper.

Establishment Clause

In Wallace v. Jaffree, 472 U.S. 38 (1985), striking down an Alabama statute mandating a minute of silence in public schools "for meditation or silent prayer", Stevens wrote the opinion for a majority that included justices William Brennan, Thurgood Marshall, Harry Blackmun, and Lewis Powell. He affirmed that the Establishment Clause is binding on the States via the Fourteenth Amendment, and that: "Just as the right to speak and the right to refrain from speaking are complementary components of a broader concept of individual freedom of mind, so also the individual's freedom to choose his own creed is the counterpart of his right to refrain from accepting the creed of the majority. At one time, it was thought that this right merely proscribed the preference of one Christian sect over another, but would not require equal respect for the conscience of the infidel, the atheist, or the adherent of a non-Christian faith such as Islam or Judaism. But when the underlying principle has been examined in the crucible of litigation, the Court has unambiguously concluded that the individual freedom of conscience protected by the First Amendment embraces the right to select any religious faith or none at all."

Stevens wrote a dissent in Van Orden v. Perry, 545 U.S. 677 (2005), in which he was joined by Justice Ruth Bader Ginsburg; he argued that the ten commandments displayed in the Texas Capitol grounds transmitted the message: "This State endorses the divine code of the 'Judeo-Christian' God." The Establishment Clause, he wrote, "at the very least ... has created a strong presumption against the display of religious symbols on public property", and that it "demands religious neutrality—Government may not exercise preference for one religious faith over another". This includes a prohibition against enacting laws or imposing requirements that aid all religions as against unbelievers, or aid religions that are based on a belief in the existence of God against those founded on different principles.

Commerce clause and states' rights

When interpreting the Interstate Commerce Clause, Stevens consistently sided with the federal government. He dissented in United States v. Lopez, 514 U.S. 549 (1995) and United States v. Morrison, 529 U.S. 598 (2000), two prominent cases in which the Rehnquist court changed direction by holding that Congress had exceeded its constitutional power under the Commerce Clause. He then authored Gonzales v. Raich, 545 U.S. 1 (2005), which permits the federal government to arrest, prosecute, and imprison patients who use medical marijuana regardless of whether such use is legally permissible under state law.

Fourth Amendment

Stevens had a generally libertarian voting record on the Fourth Amendment, which deals with search and seizure. Stevens authored the majority opinion in Arizona v. Gant, which held that "police may search a vehicle incident to a recent occupant's arrest only if the arrestee is within reaching distance of the compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest." He dissented in New Jersey v. T. L. O., 469 U.S. 325 (1985) and Vernonia School District 47J v. Acton, 515 U.S. 646 (1995), both involving searches in schools. He was a dissenter in Oliver v. United States, 466 U.S. 170 (1984), a case relating to the open-fields doctrine. However, in United States v. Montoya De Hernandez, 473 U.S. 531 (1985), he sided with the government, and he was the author of United States v. Ross, 456 U.S. 798 (1982), which permits the police to search closed containers found in the course of searching a vehicle. He also authored the dissent in Kyllo v. United States, 533 U.S. 27 (2001), which held that the use of thermal imaging requires a warrant.

In a 2009 paper, Ward Farnsworth argued that Stevens's "dissents against type" (in Stevens's case, votes in dissent in favor of the government's position and against the accused, such as the one in Kyllo) suggest that while Stevens "[believed] strongly in laying out resources for the sake of accuracy and opportunities to protest an unfair trial, [he is] not nearly as concerned about restraining the government at the front end of the process, when it is gathering evidence—for the costs of invaded rights then are to liberty rather than to accuracy".

Death penalty

Stevens joined the majority in Gregg v. Georgia, 428 U.S. 153 (1976), which overruled Furman v. Georgia, 408 U.S. 238 (1972) and again allowed the use of the death penalty in the United States. In later cases such as Thompson v. Oklahoma, 487 U.S. 815 (1988) and Atkins v. Virginia, 536 U.S. 304 (2002), Stevens held that the Constitution forbids the use of the death penalty in certain circumstances. Stevens opposed using the death penalty on juvenile offenders; he dissented in Stanford v. Kentucky, 492 U.S. 361 (1989) and joined the Court's majority in Roper v. Simmons, 543 U.S. 551 (2005), overturning Stanford. In Baze v. Rees, 553 U.S. 35 (2008), Stevens voted with the majority in upholding Kentucky's method of lethal injection, because he felt bound by stare decisis. However, he opined that "state-sanctioned killing is ... becoming more and more anachronistic" and agreed with former justice Byron White's assertion that "the needless extinction of life with only marginal contributions to any discernible social or public purposes ... would be patently excessive", in violation of the Eighth Amendment (quoting from White's concurrence in Furman). Soon after his vote in Baze, Stevens told a Sixth Circuit conference that one of the drugs (pancuronium bromide) in the three-drug cocktail used by Kentucky to execute death row inmates is prohibited in Kentucky for euthanizing animals. He questioned whether Kentucky Derby second-place finisher Eight Belles died more humanely than those on death row. He explained that his death penalty decisions were influenced, in part, by an increasing awareness through DNA testing of the fallibility of death sentences, and the fact that death-qualified juries come with a set of biases. Stevens, at the time of his opinion in Baze, was one of four justices—the others being Brennan, Marshall, and Blackmun—who had concluded that post-Gregg capital punishment is unconstitutional under the Eighth Amendment. After his retirement, Stevens stated that his vote in Gregg was the only vote he regretted.

Other significant opinions

Chevron

Stevens authored the majority opinion in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). The opinion stands for how courts review administrative agencies' interpretations of their organic statutes. If the organic statute unambiguously expresses the will of Congress, the court enforces the legislature's intent. If the statute is unclear (and is thus thought to reflect a Congressional delegation of power to the agency to interpret the statute), and the agency interpretation has the force of law, courts defer to an agency's interpretation of the statute unless that interpretation is deemed to be "arbitrary, capricious, or manifestly contrary to the statute". This doctrine is now generally referred to as "Chevron deference" among legal practitioners.

Unlike some other members of the Court, Stevens was consistently willing to find organic statutes unambiguous and thus overturn agency interpretations of those statutes. (See his majority opinion in Immigration and Naturalization Service v. Cardoza-Fonseca, 480 U.S. 421 (1987), and his dissent in Young v. Community Nutrition Institute, 476 U.S. 974 (1986).) Although Chevron has come to stand for the proposition of deference to agency interpretations, Stevens, the author of the opinion, was less willing to defer to agencies than the rest of his colleagues on the Court.

Crawford v. Marion County Election Board

Stevens wrote the lead opinion in Crawford v. Marion County Election Board, a case where the Court upheld the right of states to require an official photo identification card to help ensure that only citizens vote. Chief Justice John Roberts and Justice Anthony Kennedy joined this opinion, and justices Antonin Scalia, Clarence Thomas, and Samuel Alito agreed with them on the outcome. Edward B. Foley, an election law expert at Ohio State University, said the Stevens opinion might represent an effort to "depoliticize election law cases." Stevens's vote in Crawford and his agreement with the Court's conservative majority in two other cases during the 2007–2008 term (Medellin v. Texas, 552 U.S. 491 (2008) and Baze v. Rees) led University of Oklahoma law professor and former Stevens clerk Joseph Thai to wonder if Stevens was "tacking back a little bit toward the center."

Despite his vote in Crawford, Stevens expressed disagreement with Shelby County v. Holder, a case that struck down preclearance requirements of the Voting Rights Act.

Bush v. Gore

In Bush v. Gore, 531 U.S. 98 (2000), Stevens wrote a scathing dissent on the Court's ruling to stay the recount of votes in Florida during the 2000 presidential election. He believed that the holding displayed "an unstated lack of confidence in the impartiality and capacity of the state judges who would make the critical decisions if the vote count were to proceed". He continued, "The endorsement of that position by the majority of this Court can only lend credence to the most cynical appraisal of the work of judges throughout the land. It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. Time will one day heal the wound to that confidence that will be inflicted by today's decision. One thing, however, is certain. 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."

Second Amendment

Stevens wrote the primary dissenting opinion in District of Columbia v. Heller 554 U.S. 570 (2008), a landmark case which addressed the interpretation of the Second Amendment and the right to keep and bear arms. Heller struck down provisions of the Firearms Control Regulations Act of 1975 and held that the Second Amendment protects an individual's right to possess a firearm unconnected with service in a militia for traditionally lawful purposes, such as self-defense within the home. His dissent was joined by justices David Souter, Ruth Bader Ginsburg, and Stephen Breyer; the majority opinion was written by Justice Antonin Scalia.

Stevens stated that the Court's judgment was "a strained and unpersuasive reading" which overturned longstanding precedent, and that the Court had "bestowed a dramatic upheaval in the law." Stevens also stated that the amendment was notable for the "omission of any statement of purpose related to the right to use firearms for hunting or personal self-defense" which was present in the Declarations of Rights of Pennsylvania and Vermont. Stevens' dissent seems to rest on four main points of disagreement: that the Founders would have made the individual right aspect of the Second Amendment express if that was what was intended; that the "militia" preamble and exact phrase "to keep and bear arms" demands the conclusion that the Second Amendment touches on state militia service only; that many lower courts' later "collective-right" reading of the Miller decision constitutes stare decisis, which may only be overturned at great peril; and that the Court has not considered gun-control laws (e.g., the National Firearms Act) unconstitutional. The dissent concludes, "The Court would have us believe that over 200 years ago, the Framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons. ... I could not possibly conclude that the Framers made such a choice."

On March 27, 2018, days after the March for Our Lives demonstrations in the wake of the Stoneman Douglas High School shooting, described by many media outlets as a possible tipping point for gun control legislation, Stevens wrote an essay for The New York Times, stating that the demonstrators should be demanding the outright repeal of the Second Amendment. He wrote:

Concern that a national standing army might pose a threat to the security of the separate states led to the adoption of that amendment, which provides that "a well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed." Today that concern is a relic of the 18th century.

Books

In 2011, Stevens published a memoir entitled Five Chiefs: A Supreme Court Memoir, which detailed his legal career during the tenure of five of the Supreme Court's chief justices. In Five Chiefs, Stevens recounts his time as a law clerk during the tenure of Chief Justice Vinson; his experiences as a private attorney during the Warren era; and his experience while serving as an associate justice on the Burger, Rehnquist, and Roberts Courts.

In 2014, Stevens published Six Amendments: How and Why We Should Change the Constitution, where he proposed that six amendments should be added to the U.S. Constitution to address political gerrymandering, anti-commandeering, campaign finance reform, capital punishment, gun violence, and sovereign immunity.

In 2019, at age 99 and shortly before his death, Stevens published The Making of a Justice: Reflections on My First 94 Years.

Personal life

Stevens married Elizabeth Sheeren in 1942. He was on the high court when the couple divorced thirty-seven years later in 1979. Later that same year, he married Maryan Simon; they remained married until her death in 2015. Stevens had four children, two of whom predeceased him. Stevens was a Protestant, and upon his retirement, the Supreme Court had no Protestant members for the first time in its history. He was one of only two Supreme Court justices who divorced while on the Court—the first was William O. Douglas, whom he coincidentally succeeded as an associate justice. Stevens was also an avid bridge player and belonged to the Pompano Duplicate Bridge Club Florida. Stevens was a private pilot who owned and flew a Cessna 172 with the registration number N1688F for almost two decades.

Death

On July 16, 2019, Stevens died at the age of 99 at a hospital in Fort Lauderdale, Florida, from complications of a stroke. He received hospice care and was with his two surviving children, Elizabeth and Susan, when he died.

He lay in repose at the Supreme Court on July 22, 2019, before a planned burial at Arlington National Cemetery the following day. The service was attended by all the justices on the court, as well as retired justices Anthony Kennedy and David Souter. President Donald Trump ordered flags to fly at half-staff as a mark of respect on Tuesday, July 23, until sundown.

In popular culture

Stevens was portrayed by the actor William Schallert in the 2008 film Recount. He was portrayed by David Grant Wright in two episodes of Boston Legal in which Alan Shore and Denny Crane appear before the Supreme Court. Stevens appeared in interviews in two episodes of Ken Burns's 2011 PBS documentary miniseries Prohibition, recalling his childhood in Chicago in the 1920s and 30s.

According to an April 2009 article in The Wall Street Journal, Stevens "rendered an opinion on who wrote Shakespeare's plays," proclaiming himself an Oxfordian. That is, he believes the works ascribed to William Shakespeare actually were written by Edward de Vere, 17th Earl of Oxford. As a result, he was appointed Oxfordian of the Year by the Shakespeare Oxford Society. According to the article, Antonin Scalia and Harry Blackmun shared Stevens's belief.

Stevens was 12 years old when he was at Wrigley Field for the 1932 World Series game at which Babe Ruth hit his "called shot" home run. Eighty-four years later, he attended Game 4 of the 2016 World Series, also at Wrigley Field, wearing a red bowtie with a Chicago Cubs jacket.