THE MAKING OF A JUSTICE
Reflections on My First 94 Years
By John Paul Stevens
John Paul Stevens ended his remarkable 35-year term on the Supreme Court with the approval of the Republican president who appointed him and the Democratic one who replaced him. Gerald Ford wrote in 2005 that he was prepared to let “history’s judgment” of his presidency rest exclusively on his decision in 1975 to nominate Stevens. Barack Obama scrawled his endorsement on a birthday note to Stevens in 2014 — “We miss you on the Court!”
The cross-party embrace of Stevens by these two presidents shows the distance to the right the Republican Party has traveled from Ford to Trump far more than Stevens’s own shift in the opposite direction. He was the last of a group of Republican appointees (Earl Warren, William Brennan, Harry Blackmun, David Souter and, to a degree, Sandra Day O’Connor) who breathed compassion into the law and put the impact of their decisions on real people above arid theories. In one of his last judicial opinions, Stevens wrote that his approach to interpreting the Constitution’s guarantee of liberty “is guided by history but not beholden to it.” He described his willingness to “protect some rights even if they have not already received uniform protection from the elected branches.” And crucially he argued that no method can separate the beliefs of individual judges from the work of the court. “It all depends on judges’ exercising careful, reasoned judgment,” Stevens wrote. “As it always has, and as it always will.”
Clues to how Stevens arrived at that conclusion are sprinkled through “The Making of a Justice,” but only if you dig for them. Stevens’s new book (the third since his retirement in 2010) is more catalog than sustained argument. It suffers from the burden of completism and the frustration of muffled drama. In 1933, when Stevens was 12, his father was charged with embezzlement, and a group of armed robbers who thought he’d hidden $1 million in tomato cans burst into the family’s house one evening. But Stevens plays down the effects. “I do not recall any special fear for our safety during the ensuing months in that year,” he writes.
Turning to his time as a justice, he devotes a chapter each to his 36 terms on the court. To follow the intellectual arc from one decision to a later one that relates to it, you have to read a lot of pages. Which, come to think of it, is probably what it feels like to do the work of a Supreme Court justice.
Stevens delivers, however, on a handful of timely and hugely important themes, starting with the shape of American democracy. He heard his first case about gerrymandering in 1972, in his second year as a circuit judge. Stevens wanted to apply the same standard for striking down electoral districts gerrymandered on the basis of politics as the Voting Rights Act calls for when districts are gerrymandered on the basis of race. But he couldn’t persuade a majority of his colleagues on the Supreme Court to adopt his approach. In 2004, most of the justices agreed on “the incompatibility of severe partisan gerrymanders with democratic principles,” in the words of none other than Justice Antonin Scalia, a frequent Stevens sparring partner. The question, however, was whether judges could and should do anything about it. The Supreme Court’s new conservative majority may shut the door on judicial remedies for political gerrymandering by the end of this term.
Stevens was on the losing side of three other fights that he calls the court’s biggest mistakes. One of them, Bush v. Gore, sneaked up on him (like a lot of people). He didn’t foresee a role for the Supreme Court when the lawsuits over the Florida vote count began, he writes. Stevens wanted the court to stay out. Many commentators have condemned the majority’s contrary decision to halt the recount, and the thin reasoning behind it. But it’s still weighty when an institutional loyalist who had a front-row seat declares that “the court has not fully recovered from the damage it inflicted on itself in Bush v. Gore.”
According to Gallup, the drop in the court’s public approval rating after Bush v. Gore in 2000 largely disappeared over the ensuing decade. But a second protracted slide began after what Stevens calls the court’s “second-biggest error” — the 5-to-4 ruling in 2010 in Citizens United. Stevens terms the decision, which struck down limits Congress set on campaign donations for corporations and unions, “a disaster for our election law.” He thinks the majority got the First Amendment wrong. “The Constitution does in fact permit numerous restrictions on speech for the purpose of preventing the voices of a few from drowning out the many.”
To remove any doubt about the First Amendment’s scope, Stevens proposed a constitutional amendment in his last book that would allow Congress to impose “reasonable limits” on campaign spending. In “The Making of a Justice,” he also hopes for a constitutional fix for what he calls “unquestionably the most unwelcome event in my 40-year tenure as a federal judge.” He is talking about the line of cases in which the conservative majority has struck down local gun-control ordinances by finding — for the first time in the court’s history — that the Second Amendment includes an individual right to bear arms. Stevens reveals that he went to great lengths to convince his colleagues otherwise. In perhaps the book’s most behind-the-scenes passage, he recalls circulating a comprehensive dissent on one case five weeks before Justice Scalia sent his majority opinion around. Stevens hoped to persuade either Anthony Kennedy or Clarence Thomas to switch sides. It didn’t work.
At this juncture, Stevens faults himself for failing “to emphasize sufficiently the human aspects of the issue.” It’s a rare expression of self-doubt. Stevens does not, for example, offer much introspection into his vote in 1976 to allow states to continue imposing the death penalty by writing new statutes. He does say he made a mistake, for technical reasons, in validating the specific law in Texas. But on the overarching and crucial point, Stevens restates his eventual conclusion (from his last book) that the Constitution should be amended to abolish the death penalty. But Stevens elides the fact that he voted to uphold death sentences as late as 2008 out of respect for the court’s previous rulings allowing them. It’s a missing reckoning, especially in a memoir.
Stevens gives us a taste of his explanatory talents when he highlights the majority opinion he calls his “most unpopular.” This one comes from Kelo v. City of New London, the 2005 case in which the court ruled that a city can take property from homeowners who don’t want to sell in pursuit of economic development. Whatever you make of the merits of his position, his defense crackles with spirit.
This book appears on the occasion of Stevens’s 99th birthday. The chances are slim — very slim — that we’ll see another Republican appointee like him any time soon.