The
Business of Reflection
>>
In
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.
At
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.
In
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.
But
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 public interest.
In
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?"
Animated
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.
Stevens
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.
A
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:
Indeed,
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?
That
pragmatic approach may prove well-suited for a post-September 11world.
These
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.
If
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.
Generally
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."
Some
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.
Despite
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.
In
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 thinking.
Ed
Siskel, JD'00, is an associate at a law firm in Washington, D.C. He clerked for
Justice Stevens during the October Term 2000.
©2002 The University of Chicago® Magazine