Former Supreme Court Justice John Paul Stevens died Tuesday at the age of 99, and although he’d only been retired for nine years he seemed a relic of a bygone era of American jurisprudence.
Stevens was another one of those many Republican-appointed Justices who turned out to be more liberal than most Republicans would prefer, but we expect that even the historians on the right will treat him respectfully. His 35 years on the Supreme Court made him the second longest-serving Justice, and during that long tenure he cast votes and wrote decisions and dissents that offended both sides of the political spectrum but always impressed almost everyone with their clear logic and factual underpinnings. He was also known for his bow ties and upbeat disposition, and during the summer we spent as teenaged messengers for the Supreme Court we noticed he was unfailingly nice to the help.
He also had an interesting 99 years of life, which began in his beloved Chicago in 1920. His father was a wealthy businessman and his mother was an English teacher, but the Great Depression cost his family its famously opulent downtown Chicago hotel, and his father was convicted of embezzlement in his attempts to save, although the conviction was later overturned by the Illinois Supreme Court. While his father worked at middle class job managing someone else’s hotel Stevens attended the University of Chicago, where he majored in English and edited the school newspaper and graduated in 1941 with the highest honors. Within a year he was serving in the Navy, stationed in Pearl Harbor and assigned to a unit of brainiacs charged with breaking Japanese codes, and at the end of the war he returned to civilian life with a Bronze Star.
Two older brothers were practicing lawyers, and Stevens’ family encouraged him to follow their path. He won admission to Northwestern University’s prestigious law school, where the brand-new G.I. Bill paid his tuition, and he was editor in chief of the law review and graduated first in his class with the highest grade point average in the school’s history. A Supreme Court clerkship to President Franklin Roosevelt’s last appointee followed, and then 22 years years of a lucrative law practice mostly devoted to defending big businesses against anti-trust suits and regulations. With a hard-earned reputation for integrity and such impeccably Republican credentials he was a natural choice by President Richard Nixon to the United States Court of Appeals for the Seventh Circuit, based in Chicago, and in 1975 President Gerald Ford appointed him the Supreme Court.
The appointment was confirmed in the Senate by a vote of 98 to 0, which isn’t likely to ever happen again in our lifetimes, even with an appointee of Stevens’ undeniable qualifications, He was also the last Supreme Court appointee whose confirmation hearings weren’t televised, the last one who wasn’t questioned about his stand on the Roe v Wade decision that made first trimester abortions a constitutional right, and so far as we can tell he was the last Justice seated before the process became such a bloody political battlefield.
At first Stevens was pretty much what you’d expected from a Republican midwesterner with an anti-regulation and anti-anti-trust background, and joined with other Republican appointees in a narrow majority in the Bakke v University of Texas case that restricted but did not outright ban race-based admissions policies at the public universities, but over time he more often found himself siding with the more liberal Justices on matters ranging from the death penalty to abortion to the Bill of Right’s binding authority on the states to sex discrimination to even the authority of regulatory agencies. On each occasion we and the rest of the Republican right felt betrayed, but Stevens always had a better-educated and more clearly stated reason for his views, and by now most of his critics have mostly forgotten what all the hubbub was about, and in retrospect he think his views on the Bill of Rights applying to the states and not executing the mentally retarded were quite right. We still don’t like his vote on Chevron v Natural Resources Defense Council, which instructed lower courts to generally defer to a regulatory agency’s interpretation of federal statutes, but we wouldn’t have wanted to debate him about it in front of an audience.
Stevens stuck around long enough to annoy the libertarian left with a vote against the decision to protect flag-burning as free speeches and a vote for the decision that the federal government’s marijuana prohibition superseded the state’s right of California to to legalize it. He also annoyed the libertarian right by joining the majority Kelo v. City of New London that broadly extended local governments’ power of eminent domain, which we still hate, although once again we’d decline to debate him about it, and we note that the former real estate mogul and current Republican president is on the record saying he “loves” the Kelo decision.
As far as the purely partisan Republicans are concerned, perhaps his greatest betrayals were his dissenting opinion in the Bush v Gore case that resulted in President George W. Bush, and his resignation at the relatively tender age of 90 during the administration of Democratic President Barack Obama. That resulted in Justice Elena Kagan, who is further to the left than Stevens and far less grounded in all that old-fashioned facts and logic and the law stuff.
President Donald Trump has already appointed two Supreme Court Justices, both confirmed on strictly party lines, and he might yet get a third even without a second term. He left both choices to the conservative think-tank The Heritage Foundation and the conservative lawyer’s group The Federalist Society, and there’s little worry that either of Trump’s picks will “evolve” the way that the picks of Republican Presidents Eisenhower and Nixon and Ford and Reagan and George H.W. Bush and George W. Bush did. Our hope is that they remain true to their originalist and by-the-facts-and-letter-of-the-law beliefs, and are more loyal to that than they are to Trump when those congressional subpoenas the Trump administration is defying eventually reach the Supreme Court.
If the newest Justices are as smart and principled and humane as Justice John Paul Stevens, we’ll settle for that.
— Bud Norman