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Tuesday, July 16, 2019

Remembering Justice Stevens

Justice John Paul Stevens died Tuesday, at age 99. He is a big deal around Northwestern Law, where I went to school. The award for top GPA is named for him and his official Court portrait was on display in the library until his retirement. And in Chicago, where he was at Wrigley Field for Babe Ruth's "called shot" in 1932 and got to see the Cubs finally win the World Series in 2016.

On an instant reaction, how will Stevens be remembered as a Justice? He is the third-longest serving Justice, just shy of 35 years, trailing Douglas and Field. The easy political story is that he was a Republican appointee who became a leading liberal light on the Court, following in the shoes of Brennan and Blackmun, but on a more sharply divided Court. For purposes of one of my current projects, he spent 16 Terms as senior-most Associate Justice in frequent disagreement with the Chief, one of the longer such periods in the Court's history; this gave him the assignment power in divided cases in which a swing Justice (usually O'Connor and/or Kennedy) switched.

I wonder what opinions will define his legacy on the Court. We do not associate him with particular doctrines (as with Scalia) or particular opinions (as with Blackmun and Roe). He stuck us with Pacifica. He famously dissented in the flag-burning cases, "flipping" positions with Scalia, and in Citizens United, where the majority opinion outraged him. He wrote Reno v. ACLU, which, while not rhetorically memorable, was a more significant decision in allowing the internet to thrive as an open medium. He wrote Claiborne Hardware, which may gain new relevance in challenges to anti-BDS laws and attempts to use civil liability against Black Lives Matters protesters.

I did a Westlaw search for his most-cited opinions. He wrote Apprendi, the first move in the push to returning control over sentencing to juries. He wrote the opinion establishing Chevron deference, a doctrine in danger of overruling by the current Court, but not associated with him by name. He wrote the opinion in Sony v. Universal, which held that VCRs did not infringe copyrights. He wrote Clinton v. Jones for a unanimous Court, which had significant political consequences, but will not stick to him. And while not an opinion for the Court, his "ask me later" concurrence in Asahi means the Court did not, and still has not, solved the stream-of-commerce v. stream-of-commerce-plus problem for personal jurisdiction.

Update: In the realm of opinions that angered people, Linda Greenhouse's Times obit points out that Stevens wrote the majority in Kelo. She also suggests that Stevens' long period as senior-associate will be key to his legacy, elevating him from relative obscurity into a role that he enjoyed.

Posted by Howard Wasserman on July 16, 2019 at 11:40 PM in Howard Wasserman, Law and Politics | Permalink


"On an instant reaction, how will Stevens be remembered as a Justice? "

Should there be a time in the future when justice and prudence are valued in public life, he'll be recalled, if at all, as a BosWash corridor bubble-dweller who injured the country and didn't have a clue.

Posted by: Art Deco | Jul 19, 2019 6:57:35 PM

Stevens also wrote the majority opinion in Raich v Gonzalez allowing the federal government under its commerce clause authority to criminalize the possession and use of cannabis grown at home and used for personal medical purposes in compliance with California law. No limits on the commerce clause is the highest sacrament in the belief system of too many jurists.

Posted by: M611 | Jul 18, 2019 6:36:01 PM

I think that Stevens, like his friend Potter Stewart, was an extremely gifted lawyer who had a lot of influence on how a great number of cases were decided, especially early in his tenure, and who, like Stewart, had a handful of interesting little ideas, but no big ones. (Which he would say is kind of the point, but it is possible to have interesting ideas about how to be a common-law judge; Souter had them, as Charles Barzun documents in a recent article.) Chevron is immensely important, but he didn't understand its importance, the ideas seem to have been borrowed by whoever his law clerk was from a Henry Monaghan law review article, and he more or less repudiated what Chevron said in a series of subsequent opinions (Cardoza-Fonseca, his partial dissent in Negusie v. Holder). It is possible that those subsequent opinions will become the law, but I doubt that Chevron's foes on the Court will look to them for guidance.

Posted by: Asher Steinberg | Jul 18, 2019 1:03:37 PM

A discussion of Stevens's legacy must include Mass v. EPA, which was originally thought to be a generationally important environmental law case and has emerged as the seminal case for state standing to sue the federal government.

Posted by: Special Solicitude | Jul 18, 2019 9:08:50 AM

A discussion of Stevens's great opinions must include Mass v. EPA, which was thought to be a generationally important environmental law case when decided and has now become the most important case for state standing to sue to federal government.

Posted by: Special Solicitude | Jul 18, 2019 9:06:10 AM

I always thought the best summary of Justice Stevens is that he was an anti-systematic, anti-ideological, anti-definite answers kind of judge. He disfavored sweeping conclusions, which put him not only against the rigid originalism of Justices Scalia and Thomas, but also against the staunch liberal outcomes-driven, "let the law catch up" jurisprudence of Justices Brennan and Marshall. His concurrence in Burnham v. Superior Court of California, denying any opinion a majority, exemplifies this: he acknowledged the merits of the other three opinions of Justices Scalia, Brennan, and White, but couldn't endorse fully their conclusions, despite agreeing with the result.

If you could put any general idea underlying his jurisprudence, it's that he favored something akin to a "good governance" model of judging, which would explain his disdain for broad systems and philosophies and his votes and opinions in the flag-burning cases, Bush v. Gore, and Citizens United.

Posted by: RComing | Jul 17, 2019 3:49:35 PM

From a historical perspective, perhaps his short, sharp dissent in Bush v Gore will be remembered.

Posted by: MGould | Jul 17, 2019 2:09:25 PM

Stevens' Heller dissent is interesting because you see him confront the knots of his own thinking as it begins to back him into the corner of actually supporting Heller.

Briefly, Stevens struck on the path to the correct decision in Heller but wasn't able to follow it to its conclusion.

Posted by: YesterdayIKilledAMammoth | Jul 17, 2019 2:01:40 PM

His dissent in Heller is both a great dissent in itself to read, and also a very useful pedagogical tool to use when discussing originalism in class. If people do not already associate it with him by name, then they should start to do so.

Posted by: Anon | Jul 17, 2019 11:50:24 AM

Perhaps you could detail who would have standing in what situation to bring a claim under Justice Stevens's interpretation of the second amendment in his dissent in Heller? Thanks.

Posted by: Huffington | Jul 17, 2019 8:43:52 AM

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