He has one of the Supreme Court’s most potent and fertile minds. His opinions are clear, imaginative, and as distinctive as his jaunty bow ties. His questions at arguments are the least obvious-and the most dangerous. He is hard-working, dedicated, open-minded, gentlemanly, unassuming, adored by his clerks, and extraordinarily courteous to counsel.
Yet after nearly 15 years on the job, Justice John Paul Stevens is the Court’s least-known member. Fewer than 1 percent of those asked to identify all the Court’s sitting members in two surveys in the past year could name Stevens. Although this 70-year-old Midwestern Republican writes more opinions than anyone else, most go unsigned by his colleagues and sink into obscurity, rarely cited by anyone but him.
As Stevens himself said half in jest in a 1986 speech, "The audience that I most frequently address does not always seem to be listening to what I have to say."
Why has so gifted a jurist had so little apparent impact?
The standard explanation from former clerks at the Court, journalists, and scholars is that Stevens is too much the maverick to be a leader-even that he "is squandering his chance to become a great justice," as a by veteran Supreme Court litigator once told The New York Times.
Scholars complain that by fragmenting potential majorities his many separate opinions muddy the Court’s meaning. Some fault him for lacking a driving philosophical or moral vision.
And some former clerks for other justices say he is too unwilling to compromise, too quick to lecture his colleagues in print, too prone to sail off on odd tangents.
"Suddenly he discovers a difference from what everybody else is talking about," complains a law professor who clerked for another justice, "and he’s off, he’s gone, forget it."
There is some truth in this. When the Court divides 8 to 1, it’s a good bet that Stevens will be the one. And who else but Stevens would invoke "our historic aversion to titles of nobility" and "the economic consequences of using noble birth as a basis for classification in eighteenth-century France" in attacking a law that set aside for minority-owned businesses 10 percent of the federal money for local public works?
But those who dismiss Stevens as more clever than wise-"quirky," "idiosyncratic," "off the wall," "weird," "scattershot," and "a gadfly"-do not do him justice.
On a Court more polarized than ever between liberal and conservative blocs, Stevens plays a unique and valuable role: He stands alone in the moderate, common law, self-consciously apolitical tradition of justices like Benjamin Cardozo, John Marshall Harlan, Potter Stewart, and Lewis Powell, Jr. It is a tradition skeptical of absolutes and fixed rules, open to experience and facts, sensitive to competing values.
These very qualities help explain Stevens’s obscurity. What catches eyes in the press, the public, and the law schools is the bold ideological vision of a William Brennan, Jr., or an Antonin Scalia. The careful case-by-case distinctions of a Stevens do not lend themselves to pigeonholing and do not attract much attention.
An incrementalist who preaches "judicial restraint," Stevens calls himself the "most conservative member of the Court," in the sense of having no ideological agenda. It is, in fact, on grounds of judicial restraint that he has often assailed the new conservative majority, in tough language that contrasts strikingly with his gentle demeanor, for pursuing its own "notions of wise social policy, rather than adhering to its judicial role."
In a concurrence in April he denounced Chief Justice William Rehnquist for gratuitously broadening the discretion of police to open containers found in inventory searches of impounded cars. "To reach out so blatantly and unnecessarily to make new law in a case of this kind is unabashed judicial activism," Stevens complained.
And in 1984 Stevens startled Court-watchers with a merciless dissection of me pro-prosecution pattern of the Court’s summary rulings since 1981 (when Justice Sandra Day O’Connor replaced Stewart). "This case and cases like it pose disturbing questions concerning the Court’s conception of its role," Stevens wrote. He suggested the Court seemed "primarily concerned with vindicating the will of the majority and less interested in its role as a protector of the individual’s constitutional rights."
"He was ticked and he didn’t mind people knowing it," recalls Chicago deputy corporation counsel Lawrence Rosenthal, who clerked for Stevens that year.
While as independent as ever, Stevens has voted more consistently in recent years with the Court’s octogenarian liberals, Brennan, Thurgood Marshall, and Harry Blackmun, often on the losing side of 5-to-4 decisions. This alignment reflects the conservative tilt produced by President Ronald Reagan’s appointments of Scalia and Anthony Kennedy to replace Stewart and Powell, who had been Stevens’s friends and frequent allies in the "floating center" that held the balance of power on the Burger Court.
Now the center has disappeared. And Stevens’s opinions over the years on some issues, including affirmative action and privacy rights, suggest that as the Court has become more conservative, he has become more liberal.
Stevens-who has a policy against detailed press interviews but agreed to answer a few general questions-disagrees with this assessment. "I don’t think my views have changed that much," he says. He can and often does cite opinions he wrote in the early 1970s as an appellate judge that are remarkably consistent with his current views.
Stevens is still out of harmony with down-the-line liberals on issues such as freedom of speech and freedom of religion. Last June he jarred First Amendment devotees, and his own clerks, by endorsing prosecution of flag burners; he read his dissent from the bench in a voice cracking with emotion.
And in 1987 he publicly applauded the ill-fated nomination of Judge Robert Bork. But in dramatic contrast to Bork, Stevens has long been an impassioned voice for protecting the individual from the state.
It’s clear at least that as the conservatives push for major change in the law, Stevens is pushing back. "He doesn’t hesitate to criticize," Blackmun once said of him,’ ‘and it’s rather fun."
If Stevens seems all over the ideological map, that was one of the traits for which he was chosen. When Justice William O. Douglas retired in 1975, with the country still shaken by Watergate and the bloody battles over President Richard Nixon’s nominees to the Court, President Gerald Ford was in no mood for a fight. He was looking for an accomplished federal judge who could easily be confirmed, a person known for professionalism, not ideology. Stevens fit the bill.
The son of an English teacher and a wealthy Chicago businessman, Stevens grew up in Hyde Park and excelled at the University of Chicago. After winning the Bronze Star for his work in communications intelligence at Pearl Harbor during World War II, he went through Northwestern University law school in two years, serving as co-editor in chief of the law review and graduating first in his class, with what was then the highest academic average in the school’s history.
Stevens clerked during the Supreme Court’s 1947-1948 term for Justice Wiley Rutledge, a liberal of whom he still speaks with affection and admiration. The traits that Stevens once attributed to Rutledge are also central to his own approach: "He had great faith in wisdom born of experience and mistrusted… broadly phrased rules which deceptively suggested that they would simplify the decision of difficult questions."
Stevens began practice in Chicago in 1948 at the firm now known as Jenner & Block but left in 1952 to form his own firm. During two decades as a successful small-firm trial lawyer, he specialized in antitrust law, representing both plaintiffs and defendants, while teaching at the Northwestern and University of Chicago law schools.
A nominal Republican, he was appointed to the Seventh Circuit in 1970 by President Nixon. His first published opinion, a 1971 dissent, had a most un-Nixonian ring: He said the Wisconsin Assembly had violated due process by denying Father James Groppi notice and a hearing before summarily convicting him of contempt and imprisoning him for leading a group of protesters that occupied the assembly’s chamber for several hours to protest welfare cuts.
Stevens has told clerks he figured that dissent-at a time of great concern over disruptive political protests-would end any shot he might have at getting to the Supreme Court.
Five years later he was there. The Senate confirmed him 98 to 0, over objections by feminist groups concerned-wrongly, as it turned out- that he would be insensitive to women’s rights.
Stevens soon found, as a former clerk puts it, that the Court was not the "intellectual nirvana" of collegial discourse on "the principles of sound constitutionalism" that he had hoped for.
Instead "he was profoundly disappointed," in this clerk’s words, to find the conferences almost devoid of real intellectual discourse. According to two former clerks, Stevens considered Chief Justice Warren Burger a decent man, but one with a transparently "result-oriented" agenda and little appreciation of the legal and factual nuances of cases that are so important to Stevens.
Burger, for his part, found Stevens-dubbed "the wild card" by his new colleagues-unpredictable and gave him few important decisions to write, apparently perceiving, as has Rehnquist, that Stevens was too independent to conform to the chiefs specifications or to show gratitude by siding with him in future cases.
While disappointed, clerks say, Stevens did not accuse Burger of being spiteful-unlike Blackmun, who said in a 1986 speech, "If one’s in the doghouse with the chief, he gets the crud."
Stevens did find himself strategically placed to tip the Court’s balance on some issues, notably what to do about the modified death penalty laws various states had adopted in the wake of the Court’s 5-to-4 decision in 1972 striking down all existing death penalty laws.
Stewart, Powell, and Stevens-known at the Court as "the troika"-worked out a common approach, rejecting both the Brennan-Marshall push to abolish the penalty and the Burger-Rehnquist effort to uphold all the new state death statutes. In July 1976 the troika issued five complex plurality opinions striking down some death penalty laws and upholding others and requiring states to limit the penalty to the most culpable murderers and ensure what Stevens calls "reasonable consistency."
Now Stevens finds himself increasingly in dissent in death cases, as the Court upholds death sentences for juveniles and retarded people and seeks to expedite executions by curbing habeas corpus.
Even in his years in the floating center, Stevens was not a coalition-builder like Stewart or a pivotal figure like Powell. He was stubbornly independent. "In terms of being a good, tough lawyer he was among the best I ever worked with," says Powell. "He is a friend and a justice I admire. He always was willing to discuss a case or a draft of an opinion. He was not easy to persuade."
Stevens has written more solitary concurre…
He has one of the Supreme Court’s most potent and fertile minds. His opinions are clear, imaginative, and as distinctive as his jaunty bow ties. His questions at arguments are the least obvious-and the most dangerous. He is hard-working, dedicated, open-minded, gentlemanly, unassuming, adored by his clerks, and extraordinarily courteous to counsel.
Yet after nearly 15 years on the job, Justice John Paul Stevens is the Court’s least-known member. Fewer than 1 percent of those asked to identify all the Court’s sitting members in two surveys in the past year could name Stevens. Although this 70-year-old Midwestern Republican writes more opinions than anyone else, most go unsigned by his colleagues and sink into obscurity, rarely cited by anyone but him.
As Stevens himself said half in jest in a 1986 speech, "The audience that I most frequently address does not always seem to be listening to what I have to say."
Why has so gifted a jurist had so little apparent impact?
The standard explanation from former clerks at the Court, journalists, and scholars is that Stevens is too much the maverick to be a leader-even that he "is squandering his chance to become a great justice," as a by veteran Supreme Court litigator once told The New York Times.
Scholars complain that by fragmenting potential majorities his many separate opinions muddy the Court’s meaning. Some fault him for lacking a driving philosophical or moral vision.
And some former clerks for other justices say he is too unwilling to compromise, too quick to lecture his colleagues in print, too prone to sail off on odd tangents.
"Suddenly he discovers a difference from what everybody else is talking about," complains a law professor who clerked for another justice, "and he’s off, he’s gone, forget it."
There is some truth in this. When the Court divides 8 to 1, it’s a good bet that Stevens will be the one. And who else but Stevens would invoke "our historic aversion to titles of nobility" and "the economic consequences of using noble birth as a basis for classification in eighteenth-century France" in attacking a law that set aside for minority-owned businesses 10 percent of the federal money for local public works?
But those who dismiss Stevens as more clever than wise-"quirky," "idiosyncratic," "off the wall," "weird," "scattershot," and "a gadfly"-do not do him justice.
On a Court more polarized than ever between liberal and conservative blocs, Stevens plays a unique and valuable role: He stands alone in the moderate, common law, self-consciously apolitical tradition of justices like Benjamin Cardozo, John Marshall Harlan, Potter Stewart, and Lewis Powell, Jr. It is a tradition skeptical of absolutes and fixed rules, open to experience and facts, sensitive to competing values.
These very qualities help explain Stevens’s obscurity. What catches eyes in the press, the public, and the law schools is the bold ideological vision of a William Brennan, Jr., or an Antonin Scalia. The careful case-by-case distinctions of a Stevens do not lend themselves to pigeonholing and do not attract much attention.
An incrementalist who preaches "judicial restraint," Stevens calls himself the "most conservative member of the Court," in the sense of having no ideological agenda. It is, in fact, on grounds of judicial restraint that he has often assailed the new conservative majority, in tough language that contrasts strikingly with his gentle demeanor, for pursuing its own "notions of wise social policy, rather than adhering to its judicial role."
In a concurrence in April he denounced Chief Justice William Rehnquist for gratuitously broadening the discretion of police to open containers found in inventory searches of impounded cars. "To reach out so blatantly and unnecessarily to make new law in a case of this kind is unabashed judicial activism," Stevens complained.
And in 1984 Stevens startled Court-watchers with a merciless dissection of me pro-prosecution pattern of the Court’s summary rulings since 1981 (when Justice Sandra Day O’Connor replaced Stewart). "This case and cases like it pose disturbing questions concerning the Court’s conception of its role," Stevens wrote. He suggested the Court seemed "primarily concerned with vindicating the will of the majority and less interested in its role as a protector of the individual’s constitutional rights."
"He was ticked and he didn’t mind people knowing it," recalls Chicago deputy corporation counsel Lawrence Rosenthal, who clerked for Stevens that year.
While as independent as ever, Stevens has voted more consistently in recent years with the Court’s octogenarian liberals, Brennan, Thurgood Marshall, and Harry Blackmun, often on the losing side of 5-to-4 decisions. This alignment reflects the conservative tilt produced by President Ronald Reagan’s appointments of Scalia and Anthony Kennedy to replace Stewart and Powell, who had been Stevens’s friends and frequent allies in the "floating center" that held the balance of power on the Burger Court.
Now the center has disappeared. And Stevens’s opinions over the years on some issues, including affirmative action and privacy rights, suggest that as the Court has become more conservative, he has become more liberal.
Stevens-who has a policy against detailed press interviews but agreed to answer a few general questions-disagrees with this assessment. "I don’t think my views have changed that much," he says. He can and often does cite opinions he wrote in the early 1970s as an appellate judge that are remarkably consistent with his current views.
Stevens is still out of harmony with down-the-line liberals on issues such as freedom of speech and freedom of religion. Last June he jarred First Amendment devotees, and his own clerks, by endorsing prosecution of flag burners; he read his dissent from the bench in a voice cracking with emotion.
And in 1987 he publicly applauded the ill-fated nomination of Judge Robert Bork. But in dramatic contrast to Bork, Stevens has long been an impassioned voice for protecting the individual from the state.
It’s clear at least that as the conservatives push for major change in the law, Stevens is pushing back. "He doesn’t hesitate to criticize," Blackmun once said of him,’ ‘and it’s rather fun."
If Stevens seems all over the ideological map, that was one of the traits for which he was chosen. When Justice William O. Douglas retired in 1975, with the country still shaken by Watergate and the bloody battles over President Richard Nixon’s nominees to the Court, President Gerald Ford was in no mood for a fight. He was looking for an accomplished federal judge who could easily be confirmed, a person known for professionalism, not ideology. Stevens fit the bill.
The son of an English teacher and a wealthy Chicago businessman, Stevens grew up in Hyde Park and excelled at the University of Chicago. After winning the Bronze Star for his work in communications intelligence at Pearl Harbor during World War II, he went through Northwestern University law school in two years, serving as co-editor in chief of the law review and graduating first in his class, with what was then the highest academic average in the school’s history.
Stevens clerked during the Supreme Court’s 1947-1948 term for Justice Wiley Rutledge, a liberal of whom he still speaks with affection and admiration. The traits that Stevens once attributed to Rutledge are also central to his own approach: "He had great faith in wisdom born of experience and mistrusted… broadly phrased rules which deceptively suggested that they would simplify the decision of difficult questions."
Stevens began practice in Chicago in 1948 at the firm now known as Jenner & Block but left in 1952 to form his own firm. During two decades as a successful small-firm trial lawyer, he specialized in antitrust law, representing both plaintiffs and defendants, while teaching at the Northwestern and University of Chicago law schools.
A nominal Republican, he was appointed to the Seventh Circuit in 1970 by President Nixon. His first published opinion, a 1971 dissent, had a most un-Nixonian ring: He said the Wisconsin Assembly had violated due process by denying Father James Groppi notice and a hearing before summarily convicting him of contempt and imprisoning him for leading a group of protesters that occupied the assembly’s chamber for several hours to protest welfare cuts.
Stevens has told clerks he figured that dissent-at a time of great concern over disruptive political protests-would end any shot he might have at getting to the Supreme Court.
Five years later he was there. The Senate confirmed him 98 to 0, over objections by feminist groups concerned-wrongly, as it turned out- that he would be insensitive to women’s rights.
Stevens soon found, as a former clerk puts it, that the Court was not the "intellectual nirvana" of collegial discourse on "the principles of sound constitutionalism" that he had hoped for.
Instead "he was profoundly disappointed," in this clerk’s words, to find the conferences almost devoid of real intellectual discourse. According to two former clerks, Stevens considered Chief Justice Warren Burger a decent man, but one with a transparently "result-oriented" agenda and little appreciation of the legal and factual nuances of cases that are so important to Stevens.
Burger, for his part, found Stevens-dubbed "the wild card" by his new colleagues-unpredictable and gave him few important decisions to write, apparently perceiving, as has Rehnquist, that Stevens was too independent to conform to the chiefs specifications or to show gratitude by siding with him in future cases.
While disappointed, clerks say, Stevens did not accuse Burger of being spiteful-unlike Blackmun, who said in a 1986 speech, "If one’s in the doghouse with the chief, he gets the crud."
Stevens did find himself strategically placed to tip the Court’s balance on some issues, notably what to do about the modified death penalty laws various states had adopted in the wake of the Court’s 5-to-4 decision in 1972 striking down all existing death penalty laws.
Stewart, Powell, and Stevens-known at the Court as "the troika"-worked out a common approach, rejecting both the Brennan-Marshall push to abolish the penalty and the Burger-Rehnquist effort to uphold all the new state death statutes. In July 1976 the troika issued five complex plurality opinions striking down some death penalty laws and upholding others and requiring states to limit the penalty to the most culpable murderers and ensure what Stevens calls "reasonable consistency."
Now Stevens finds himself increasingly in dissent in death cases, as the Court upholds death sentences for juveniles and retarded people and seeks to expedite executions by curbing habeas corpus.
Even in his years in the floating center, Stevens was not a coalition-builder like Stewart or a pivotal figure like Powell. He was stubbornly independent. "In terms of being a good, tough lawyer he was among the best I ever worked with," says Powell. "He is a friend and a justice I admire. He always was willing to discuss a case or a draft of an opinion. He was not easy to persuade."
Stevens has written more solitary concurrences and dissents over the years than anyone else on the Court. If he seems unduly resistant to compromise and insistent on stating his views separately, it reflects a healthy reluctance to join opinions he does not believe, and a sense of obligation to explain candidly the reasons for his vote.
Lawrence Rosenthal recalls a case during his clerkship on rights to the power generated by one dam. The case was both boring and unimportant, and Stevens was the lone dissenter. It was May. There were lots of opinions to do and Rosenthal’s co-clerk was out sick.
"I kept saying, ‘Justice, nobody cares about this, why do we have to write this dissent?’ " Rosenthal recalls. "But he absolutely insisted, and he and I were both there late a number of nights finishing it. Every case is important to him."
Unlike most of his colleagues, Stevens writes all his first drafts-some full and footnoted, others very rough-in longhand on yellow legal pads. Later he dictates them for the clerks to flesh out and bounces drafts and redrafts back and forth with them. Stevens attaches great importance to doing much of his own writing, former clerks say, both to refine his thinking and to make sure that his thinking is what gets published under his name.
It was largely out of concern that "the clerks would get ahead of me on the opinions and then I’d stop writing my own first drafts," Stevens says, that until recently he hired only two clerks per term, rather than the standard complement of four. Now he hires three.
(While it is a rare law clerk who does not sing the praises of his or her boss, those who have worked for Stevens exude special enthusiasm. "If he ran a gas station, it would be a wonderful place to work," one once remarked to a co-clerk.)
Getting up at 5 A.M. most days, Stevens says he does his best work in the mornings at home, where he keeps a law library. He fits in an 8 A.M. tennis game three or four times a week, then works in his chambers until 6 P.M.
Between the Court’s two-week argument sessions, Stevens and his wife spend much of their time at their condominium in Fort Lauderdale. Clerks say that some of his Florida acquaintances have no idea that this enthusiastic white-haired competitor-besides tennis, he plays golf and tournament bridge and flies small planes-sits on the highest court in the land. While in Florida, Stevens works about the same schedule as in Washington, staying in touch with his chambers by phone and sending opinion drafts up by Federal Express.
His hands-on approach shines through in the opinions. They have an unusually personal and direct tone and are often models of clarity, uncluttered by the opaque legal jargon and three-pronged tests that are the stock in trade of clerks who have been weaned from ordinary English by the nation’s law reviews.
It was Stevens-in a case cluttered with stale disputation about whether to take a "two-tiered" or "three-tiered" approach to applying the equal protection clause to women-who made a clean sweep of all the "tiers," saying, "There is only one equal protection clause. It requires every state to govern impartially."
One connoisseur of Stevens’s opinions is Yale Law School professor Paul Gewirtz, who clerked for Justice Marshall before Stevens was named to the Court. He calls Stevens "flat-out brilliant-fast, clever, analytically sharp, and tenacious.
"Along with Justice Scalia, he’s the one who most consistently has fresh ideas and fresh and interesting ways of putting things," adds Gewirtz. "He typically tries to think a problem through without at every step relying on doctrinal jargon. I think he helps new ideas to percolate through the legal system."
In oral arguments, many Supreme Court litigators say, Stevens often asks the best questions of any justice-the most unpredictable and most penetrating. "Counsel, may I interrupt?" he will begin-and then proceed to unravel a well-presented argument.
"He is certainly the one I fear the most in oral argument," says one of the nation’s most experienced Supreme Court litigators, "because he’s so effective at hitting the problem link in your case. He destroyed me once with a question that pulled the plug on my whole argument."
Stevens does not debate with lawyers or take over arguments the way the redoubtable Scalia sometimes does, or bark at them the way Rehnquist sometimes does. Rather, he seeks politely, almost diffidently, to elicit answers that will clarify the issues and illuminate the heart of the case.
"He’s a terrific questioner," says Lawrence Robbins, an assistant solicitor general. "He more than anyone else on the Court is the most likely to ask you a question that you never expected. You walk away from the argument thinking, ‘Gosh, I should have thought of that myself.’ "
With the conservatives firing loaded questions at lawyers while Brennan, Marshall, and Blackmun sit silent, Stevens also provides what little ideological balance there is in the questioning at arguments. In last year’s big abortion case, when Missouri attorney general William Webster would not give straight answers about the precise meaning of the abortion restrictions he was charged with enforcing, Stevens pursued him with some 30 follow-up questions. "What is your opinion? Don’t you know?" Stevens pressed, coming as close as he ever does to showing exasperation.
But he also brings a human touch and a hint of mischief to the sometimes stuffy proceedings. Last year, after Rehnquist had reproved one lawyer for addressing him as "judge" rather than "justice" and O’Connor had more gently corrected another for doing the same thing, the second lawyer stumbled into "judge" again when addressing Stevens. "Well," Stevens said smilingly as the lawyer apologized in disarray, "your mistake in calling me judge is also made in Article III of the Constitution, by the way."
While Stevens "likes to keep the rest of us wondering how he’s going to vote," according to Blackmun, some important threads of consistency run through his work.
His main hallmark is a self-conscious commitment to the common law method of letting the law of each case emerge from the facts, saying no more than necessary to resolve it, and shunning mechanical application of abstract legal rules. "Hypothetical rulings are inherently treacherous and prone to lead us into unforeseen errors," he wrote in a 1982 dissent. "They are qualitatively less reliable than the products of case-by-case adjudication."
Sometimes, in Stevens’s view, judicial restraint argues for avoiding clear constitutional rulings on intensely controversial issues. He has said, for example, that the Court’s basic mistake in last June’s flag-burning decision was hearing the case in the first place. Despite his strong view that flag burning could be outlawed, Stevens wanted to let the Texas ruling barring prosecution of a political protester stand, in line with his view that the Court should almost never hear prosecution appeals from state court rulings in favor of defendants.
"Procrastination and indecision" may also be the best policy on hard issues like affirmative action, Stevens said in a 1985 law review article entitled "Judicial Restraint." It gives the body politic time to deliberate and reach pragmatic accommodations rather than truncating the democratic process by judicial decree.
It also has the virtue of allowing the Court to engage in a dialogue with Congress, by sending constitutionally troublesome laws back for more careful consideration rather than purporting definitively to resolve questions to which no clearly right or wrong answers exist.
Stevens is far from being a devotee of judicial restraint in the Borkian sense of deferring to policy decisions by elected officials unless contrary to the original intent of the framers. Viewing judges as "lawmakers in the common law tradition," Stevens is one of the Court’s foremost advocates of enforcing what he has called "extratextual rights" that are nowhere mentioned in the Constitution-and that Bork, for one, deplores as judicial usurpation of legislative power.
Stevens’s jurisprudence is suffused with a conviction that’ ‘certain values are more important than the will of a transient majority," and that the judiciary has a broad mandate to promote freedom, equal opportunity, and religious tolerance, and to hold the government to a high standard of fairness in dealing with citizens, whether they be prison inmates, bidders for public works contracts, or ordinary taxpayers.
For one given to faulting the Court for pursuing its own "notions of wise social policy, rather than adhering to its judicial role," his vision of his judicial role often converges with his notions of wise social policy. He is quite willing, for example, to strike down laws by incrementally extending precedents that read new meaning into broad constitutional phrases like the due process and equal protection clauses, and by making the kinds of explicit value judgments from which others shrink.
Nowhere is this more evident than in Stevens’s opinions upholding an unfettered right to choose abortion early in pregnancy. "I should think it obvious," Stevens said in a 1986 concurrence, "that the state’s interest in the protection of an embryo… increases progressively and dramatically as the organism’s capacity to feel pain, to experience pleasure, to survive, and to react to its surroundings increases day by day."
Stevens has also sought to rescue the case for freedom of choice on abortion, contraception, homosexual conduct, and other highly personal decisions from the conceptual vulnerabilities of the "right to privacy" announced in Roe v. Wade and its antecedents. He prefers to rest on the concept of liberty, which unlike privacy is right there in the due process clause, and which has been seen by moderate justices like Harlan, Stewart, and Powell as a source of dynamically evolving personal freedoms.
And in his dissent in Webster, Stevens boldly advanced an argument that no other justice has made: that the Missouri law declaring that human life begins at conception was an unconstitutional establishment of religion.
Stevens cuts through the legalistic fog in which the Court has shrouded the guarantee of equal protection of the laws. Rejecting as more likely "to obfuscate than to clarify the inquiry" the differing levels of scrutiny the Court has mechanically applied in reviewing laws burdening various groups, Stevens instead asks in every case whether "an impartial lawmaker could logically believe that the classification would serve a legitimate public purpose that transcends the harm to the members of the disadvantaged class."
In practice, Stevens has voted often-but not always-with the liberals, to strike down laws that put special burdens on what he has called "traditionally disfavored" groups, including women, aliens, illegitimate children, the retarded, and the poor. Such laws are often based on "habit, rather than analysis," he said in one dissent, and "that sort of stereotyped reaction may have no rational relationship-other than pure prejudicial discrimination-to the stated purpose for which the classification is being made."
One cost of the open-ended Stevens approach, as his former clerk Stewart Baker has written, is that "it demands a far more skeptical and probing look at legislative politics than is usual for advocates of restraint"-and one virtue is that it does not pretend "that laws are invalidated by some brooding three-tiered omnipresence in the sky."
Stevens speaks with as much passion as any of the Court’s liberals when defending the rights of criminal defendants and prisoners under the Fourth, Fifth, and Sixth Amendments from overreaching by the authorities.
He stresses that "the Court must be ever mindful of its primary role as the protector of the citizen and not the warden or the prosecutor," and often chides colleagues for undermining "the function of the independent lawyer as guardian of our freedom."
While Stevens gives police more "latitude for honest mistakes" in executing search warrants and the like than do Brennan or Marshall, he is vigilant against deliberate circumvention of constitutional protections.
One example was his blistering dissent from the Court’s 1986 decision in Moran v. Burbine, which watered down defendants’ rights to have a lawyer present during interrogation. The defendant was a brutal killer. But Stevens was outraged by the majority’s upholding of what he called "police deception of the shabbiest kind" to get a confession. "The Court," he wrote, "concludes that the police may deceive an attorney by giving her false information about whether her client will be questioned, and that the police may deceive a suspect by failing to inform him of his attorney’s communications and efforts to represent him."
The majority managed to reconcile such police tactics with a narrow reading of the Miranda decision. To Stevens this was pettifoggery: "Due process requires fairness, integrity, and honor in the operation of the criminal justice system, and in its treatment of the citizen’s cardinal constitutional protections."
Similarly passionate have been his dissents denouncing the majority for upholding treatment of prison inmates that, he says, violates "any civilized standard of decency." Stevens took the unusual step of reading his dissent from the bench when the Court held in 1984 that personal effects kept by prisoners in their cells enjoy absolutely no constitutional protection from search and seizure. "By telling prisoners that no aspect of their individuality, from a photograph of a child to a letter from a wife, is entitled to constitutional protection," he said, "the Court breaks with the ethical tradition that I had thought was enshrined forever in our jurisprudence."
On free speech issues, Stevens is a relativist, protective of speech that he thinks contributes to the marketplace of ideas, but willing to curb speech to prevent, among other things, "character assassination," the "obtrusive display" of pornography, the use of corporate money in political campaigns, and desecration of the flag.
Stevens felt strongly last June that flag burning could be punished because "the trivial burden on free expression" was justified to protect a unique "symbol of freedom, of equal opportunity, of religious tolerance, and of goodwill." His legal reasoning, including a weak analogy to defacing the Lincoln Memorial, was uncharacteristically flaccid. But his opinion rang with a World War II veteran’s deeply patriotic sense of the flag’s meaning to "the Philippine scouts who fought at Bataan and the soldiers who scaled the bluff at Omaha Beach."
Stevens is skeptical of the First Amendment tenet that speech may not be restricted on the basis of content. He accords less protection to commercial speech and sexually explicit speech than to political speech-making explicit value judgments that the Court has adopted implicitly. "Few of us would march our sons and daughters off to war to preserve the citizen’s right to see Specified Sexual Activities exhibited in the theaters of our choice," he said in an opinion upholding zoning laws governing adult movie theaters.
But Stevens is with the liberals in wanting to strike down obscenity laws because the line between protected expression and the crime of obscenity is "so intolerably vague that even-handed enforcement of the law is a virtual impossibility." He has also been skeptical of national security justifications for suppressing information embarrassing to the government, like former CIA agent Frank Snepp’s book criticizing the agency. And he has been expansive in stretching the First Amendment to recognize rights of public access to prisons and trials to better educate citizens on matters of public concern.
In religion cases Stevens joins the liberals in holding that the ban on "establishment of religion" requires strict separation of church and state and joins the conservatives in construing narrowly the right to free exercise of religion. Both positions are driven by his aversion to governmental entanglements with religion and official evaluations of "the relative merits of differing religious claims."
In April he joined Scalia’s opinion in a major 5-to-4 decision ruling out almost all claims for exemptions from generally applicable laws that have the incidental effect of burdening religious conduct. While the immediate losers were members of the Native American Church who use peyote in religious rituals, the broadly worded opinion cast doubt on decades of free exercise doctrine.
Similarly, in 1986 Stevens joined a 5-to-4 vote to uphold an Air Force regulation barring all headgear indoors as it applied to an Orthodox Jew whose religion required wearing a yarmulke. Stevens said "the interest in uniform treatment for the members of all religious faiths" called for denying this "especially attractive" claim. An exception for a yarmulke would invite similar claims for Sikh turbans and Rastafarian dreadlocks; rather than granting religious exemptions to some and not others, the government should be able to deny them all.
Those who think Stevens has become more liberal during his years on the Court often cite the evolution of his views on affirmative action. From 1978 through 1984 he found unlawful all four racial preferences for minority group members that the Court reviewed. This reflected his view that the 1964 Civil Rights Act was intended to ban all racial preferences in college admissions, other federally assisted programs, and employment.
Stevens also voted in 1980 to hold unconstitutional Congress’s set-aside of 10 percent of federal public works money for minority-owned contractors. Denouncing the casual use of racial quotas as "pernicious," he contended that they "can only exacerbate rather than reduce racial prejudice," by fostering perceptions that the beneficiaries cannot succeed on merit. And in a footnote stressing that "the very attempt to define with precision a beneficiary’s qualifying racial characteristics is repugnant to our constitutional ideals," he pointedly quoted Nazi Germany’s official definition of a Jew.
But in 1986 and 1987 Stevens seemed to switch sides, cementing liberal majorities in five decisions rebuffing the Reagan administration’s frontal attack on all racially preferential affirmative action.
Characteristically writing for himself alone in Wygant v. Jackson Board of Education in 1986, Stevens eschewed the standard approach of assessing whether the preferences were proper remedies for past discrimination and looked instead to the future.
The question, Stevens said, was not "whether minority teachers have some sort of special entitlement to jobs as a remedy for sins that were committed in the past," but whether the school board’s preferences for minorities in layoffs advanced "the public interest in educating children for the future." He concluded that they did, because an integrated faculty could teach by example lessons of racial equality and tolerance.
Similarly, in Johnson v. Transportation Agency in 1987, Stevens suggested that the goal of a more diverse work force would justify adoption of voluntary affirmative action plans even by employers with no history of discrimination.
The Stevens approach avoids the most conspicuous flaws in the remedial justification for racial preferences: that the beneficiaries typically are not direct victims of past discrimination, and the burdens are often borne by white applicants or employees who engaged in no discrimination.
But how can the Stevens of the 1980 Nazi footnote be squared with the one who so benignly endorsed the racial preferences in Wygant and Johnson? Has he simply changed his mind about affirmative action? And does his current stance amount to an open-ended invitation for adoption of racial quotas?
While Stevens’s tone does suggest he likes affirmative action preferences better than he used to, he seems unlikely to embrace them without reservation. Unlike most of the justices, Stevens appears ambivalent about affirmative action, keenly sensitive both to its costs and its benefits.
Although he approves some preferences for minority employees, he sees contract set-asides as an unsavory species of pork-barrel politics, giving "monopoly privileges" to an "entrepreneurial subclass" while doing nothing for the truly disadvantaged. Indeed, in 1989 he joined the conservatives in striking down the Richmond 30 percent set-aside of city contracts for minority-owned firms.
Stevens’s affirmative action opinions reflect his extraordinary adherence to the Court’s prior interpretations of statutes, even if those interpretations conflict with the intent of Congress. While convinced that Congress intended the 1964 Civil Rights Act to bar affirmative action preferences as well as discrimination against minorities, he sees as authoritative the Court’s contrary conclusion in the late 1970s that the law allows some voluntary affirmative action plans. And in his Johnson opinion he read those decisions more broadly than anyone else on the Court.
In fact, one of his toughest dissents came two years ago when he denounced the Court’s 5-to-4 vote to hear arguments on whether to overrule a 1976 decision broadly interpreting an 1866 civil rights statute and thereby to restore what Stevens himself considers the original intent of the 1866 statute. If the Court is going "to fashion its own agenda" and undermine minorities’ faith in "a stable construction of the civil rights laws," Stevens said, "the consequences for the nation-and for the future of this Court as an institution-will be even more serious than any temporary encouragement of previously rejected forms of racial discrimination."
Does such rhetoric reflect fears that as the new conservative majority tightens its grip, the Court will cease to be a force for liberty and racial justice?
When this reading is suggested to Stevens, he demurs. "Despite my disagreements," he says, "these are fine people on this Court, and they are sensitive to these values. It’s just that their priorities are a little bit different than I wish they were."
His own priorities are different than almost everybody wishes they were. Conservatives find him too liberal, liberals find him too conservative, and both find him too unconventional and hard to pin down.
"He has not played the leadership role on the Court that a lot of us thought he would play, and that he should play," says a judge who likes and admires him.
Still, Stevens presses on, combing through records and briefs like a trial judge, carefully explaining his votes in his separate opinions, unfazed when nobody joins him, seemingly indifferent to his lack of a following.
With his brains, he might have been a philosopher king. But John Paul Stevens seems content to be a judge.