2002: Features (print version)
Business of Reflection
awarding its 2002 Alumni Medal to John Paul Stevens, the Alumni Association
honored a Supreme Court Justice with-out an agenda but-as his former
law clerk argues-a Chicago frame of mind.
by Edward Siskel, JD'00
Photography by Dan Dry
a June 1 ceremony in Rockefeller Chapel, John Paul Stevens, AB'41, received
the Alumni Medal, the highest honor given by the University's alumni
association. Later that day he was also recognized with the Laboratory
Schools' Distinguished Alumnus Award. The two awards are fitting tributes,
not only because Stevens-an Associate Justice on the U.S. Supreme Court
since 1975-has had a legal career that is as distinguished as they come,
but also because Stevens is a true son of the University community.
He grew up near the corner of 57th and Kenwood and in many ways is an
intellectual heir of the Lab Schools' founder, John Dewey.
1932, when Stevens was 12 years old, Dewey wrote: "The business
of reflection in determining the true good cannot be done once and for
all, as, for instance, making out a table of values arranged in a hierarchical
order of higher and lower. It needs to be done, and done over and over
and over again, in terms of the conditions of concrete situations as
they arise. In short, the need for reflection and insight is perpetually
recurring." Dewey's concept of "reflection"-the constant
reexamination of one's ideas about the good in concrete situations-provides
a proper description of Stevens's pragmatic judicial philosophy. In
his 27 years on the Court, Stevens has consistently eschewed "once
and for all" approaches to legal problems and has remained attuned
to the complexities of individual cases. He has resisted attempts to
categorize legal questions into a hierarchy of levels of scrutiny and
believes that legal rules should be tested against the messy facts of
real-world scenarios. His opinions display the markings of a justice
without an agenda, who takes seriously the idea that the Court should
decide one case at a time as narrowly as possible.
Stevens's path to the law was far from certain. As his College graduation
approached in winter 1941, he imagined he would become an English professor.
He had studied poetry with Norman Maclean, PhD'40, and wanted to continue
studying Shakespeare in graduate school. Shortly before graduation,
however, a professor who had observed Stevens's talents in math suggested
that he enroll in a correspondence course in cryptography offered by
the Navy. Stevens soon was offered a commission in Naval Intelligence
and joined the Navy on December 6, 1941. While serving as a code breaker
in the Pacific, Stevens received a letter from his older brother, a
1938 graduate of the Law School. The letter conveyed a yeoman lawyer's
excitement at helping his clients with their problems and serving the
a speech to the Chicago Bar Association last fall, Stevens said that
he was reminded of his brother's enthusiasm for the practice of law
when reading an excerpt of a letter from another newly minted lawyer
in David McCullough's recent biography of John Adams. In the letter
Adams writes: "Now to what higher object, to what greater character,
can any mortal aspire than to be possessed of all this knowledge, well
digested and ready at command, to assist the feeble and friendless,
to discountenance the haughty and lawless, to procure redress to wrongs,
the advancement of right, to assert and maintain liberty and virtue,
to discourage and abolish tyranny and vice?"
by the spirit of public service evoked in his brother's letter, after
leaving the military Stevens enrolled at Northwestern University Law
School. There he quickly distinguished himself-completing his studies
in two years, serving as editor-in-chief of the law review, and graduating
first in his class with the highest grade point average in the school's
history. After clerking for Supreme Court Justice Wiley Rutledge during
the 1947 Term, Stevens returned to Chicago and entered private practice.
He soon developed an expertise in antitrust law and was asked by then-U
of C Law School Dean Edward Levi, PhB'32, JD'35, to teach a course in
competition and monopoly. Stevens became one of the early experimenters
in teaching law from an interdisciplinary perspective, co-teaching the
course with economist Aaron Director. Stevens and Levi formed a life-long
friendship that continued in Washington while Levi was serving as Attorney
General under President Ford and Stevens became Ford's only appointee
to the Supreme Court. A recent book, Illinois Justice: The Scandal
of 1969 and the Rise of John Paul Stevens, describes his ascent
from young attorney to the post of chief counsel for the independent
commission investigating allegations of misconduct by members of the
Illinois Supreme Court. That was followed by his appointment to the
Seventh Circuit Court of Appeals, and then, five years later, his appointment
to the Supreme Court.
has just completed his 27th term on the Court and shows no signs of
slowing down. For the past eight terms he has been the senior associate
justice, which means that whenever he is on the opposite side of a decision
from Chief Justice William Rehnquist (i.e., most of the time), he assigns
either the opinion for the Court or the dissent. During much of his
time on the Court, Stevens has been its most prolific writer and its
most frequent dissenter. (The statistics show that he agrees most often
with Justice Ruth Bader Ginsburg or Justice Stephen Breyer, and least
often with Justice Antonin Scalia.) In the last three terms he has written
almost twice as many dissents as the next most frequent dissenter. Stevens
gives several reasons for this practice of writing separately. The best
way to ensure that he is certain of his vote in a case, he says, is
to write out his position. He also believes strongly in transparency
of government and that the Court should not be immune from public scrutiny.
He is critical of the practice of displaying a false unanimity and thinks
the public should know when there is disagreement among the Justices.
steady source of those dissenting opinions has been the Rehnquist Court's
decisions in the area of state sovereign immunity. Stevens has regularly
rejected the Court's unrestrained states' rights jurisprudence, criticizing
the doctrine as not only unmoored from constitutional text, but inconsistent
with the demands of modern governance. In Printz v. United States,
a 1997 decision holding that Congress cannot require local law enforcement
officers to conduct background checks of prospective handgun purchasers,
Stevens wrote a dissent that has proved eerily prophetic:
since the ultimate issue is one of power, we must consider its implications
in times of national emergency. Matters such as the enlistment of
air raid wardens, the administration of a military draft, the mass
inoculation of children to forestall an epidemic, or perhaps the threat
of an international terrorist, may require a national response before
federal personnel can be made available to respond. If the Constitution
empowers Congress and the President to make an appropriate response,
is there anything in the Tenth Amendment, "in historical understanding
and practice, in the structure of the Constitution, [or] in the jurisprudence
of this Court,"
that forbids the enlistment of state officers
to make that response effective?
pragmatic approach may prove well-suited for a post-September 11world.
days Stevens is perhaps best known for his dissenting opinion in Bush
v. Gore, with its powerful ending: "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."
But he has authored numerous landmark decisions, such as his opinion
this term in Atkins v. Virginia, holding that the Eighth Amendment's
prohibition against cruel and unusual punishment bars the execution
of the mentally retarded; Clinton v. Jones, in which he wrote
for a unanimous Court that the President of the United States is not
immune from being sued while in office; and Reno v. ACLU, striking
down Congress' first attempt to regulate pornography on the Internet.
those cases come most readily to the public's mind, the lawyer's choice
for Stevens's most significant contribution is most likely Chevron
v. Natural Resources Defense Council, in which the Court recognized
that administrative agencies are entitled to deference when filling
in the gaps left by Congress in federal statutes. Not only is that decision
one of the most frequently cited in subsequent cases and law review
articles, but it also has had a major impact on the interaction of the
courts, Congress, and administrative agencies. The decision is typical
of Stevens's approach in recognizing that agencies have an expertise
in their particular sphere, which makes them uniquely suited to develop
a regulatory scheme over time, and that the Court can act as an effective
referee in determining when Congress has implicitly delegated its authority
to the Executive branch.
skeptical of sweeping rules and rigid categories, Stevens often has
resisted the Court's practice in both First Amendment and equal protection
cases of categorizing questions according to different levels of scrutiny.
Even though he is one of the justices most protective of free-speech
rights, he does not shy away from recognizing that not all speech is
of equal value. In Texas v. Johnson, for example, Stevens defied
categorization as a sure vote for the free-speech crowd by writing a
passionate dissent against flag burning: "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."
Moreover, he believes that not all fora for expression should be treated
the same-radio broadcasts are different from Web sites, which in turn
are different from public parks. And he is realistic about the fact
that bright-line rules are easily abandoned when tested, noting that
categorical rules are "only 'categorical' for a page or two in
the U. S. Reports."
of Stevens's most important contributions, however, have been the least
publicly recognized ones. To name just a few, by opting out of the "cert
pool," which the other Justices use to divide up responsibility
for evaluating petitions for review by the Court, Stevens provides an
invaluable check on the system by which the Court exercises discretion
over its docket. By reminding the Court that its wholesale rejection
of legislative history is a relatively recent phenomenon that often
yields results at odds with any sensible notion of what Congress intended,
Stevens preserves a common-sense method of statutory interpretation
that views the Court as a partner with the other branches of government.
And his courteous manner during oral argument offers an example of a
genteel professional ethic that, at times, unfortunately seems a relic
of a bygone era.
his busy schedule on the Court, Stevens has never abandoned his love
for literature. There is a part of the jurist that still wants to be
an English professor. He continues to pursue his love for Shakespeare,
choosing to celebrate the end of the Term this year by visiting the
nearby Folger Shakespeare Library. But always the iconoclast, Stevens
is not content to accept the received wisdom with respect to the authorship
of Shakespeare's works. He is part of that small but growing group of
scholars who contend that Edward de Vere, the Seventeenth Earl of Oxford,
is the true author of the Shakespeare Canon.
awarding Stevens the Alumni Medal, the Alumni Association has recognized
that he embodies the best the University has to offer: "reflection
on the true good," commitment to public service, and independent
Siskel, JD'00, is an associate at a law firm in Washington, D.C. He
clerked for Justice Stevens during the October Term 2000.