Progressive Authors: Justice Stevens’s Principled and Pragmatic Legacy

New Book Looks Back on Judge’s Career

June 30, 2010

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Last night, on the day of Justice John Paul Stevens’s retirement after 34 years on the Supreme Court, CAP’s Progressive Authors Series featured Bill Barnhart and Gene Schlickman’s new book, John Paul Stevens: An Independent Life. This book provides the first biographic history of a judge who would become known as the Court’s “liberal lion” even though he was appointed by a Republican president. Stevens himself never chose the title, but Barnhart and Schlickman show how he was not so much committed to any certain political ideology as he was to judicial restraint, independence, and a pragmatic approach to the law.

The book emphasizes that Stevens’s personal background was a major influence on the kind of judge he would become. He grew up in Chicago, attending the University of Chicago and then Northwestern School of Law where he earned the highest grade point average in the school’s history up until that time. Barnhart and Schlickman argue that during Stevens’s time in private practice working on antitrust cases he learned how to resolve disputes. This skill served him well on the Supreme Court because in a number of important cases Stevens had to convince one more justice to see a case from his point of view in order to gain the majority.

The authors also suggest that Stevens’s military service helped him develop some of the skills he brought to bear as a high court judge. He joined the Navy on December 6, 1941, the day before the Japanese bombed Pearl Harbor, and worked in communications, interpreting Japanese radio signals. It was there that he developed an “absolute focus on evidence” and analytical precision, which he became known for on the Court.

Many commentators today say that Justice Stevens’s legal approach became less conservative and more progressive over time. But Stevens has always insisted that he hasn’t shifted to the left—the rest of the Court has shifted far to the right. This may be true, as many of the recent conservative Court appointees have been fierce advocates of originalism and textualism, which translates into an essentially very literal and radical version of judicial conservatism.

But perhaps Stevens is more progressive than he realizes. He’s been an impassioned champion for civil liberties, racial justice, and the democratic process. In most Court cases, for example, he supported students’ right to free speech in public schools, and he supported the use of affirmative action in the famous University of Michigan Law School case in 2003. He also wrote a stinging dissent in Bush v. Gore, famously concluding, “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.”

The authors also stress the pragmatic strain of legal thought in Stevens’s opinions. Early in his career on the bench, for example, he upheld decisions to maintain the death penalty’s legality. But as time went on he came to view the punishment as “anachronistic,” and in Baze v. Rees he found the death penalty to be “pointless” with “only negligible social or public returns.” One of the main reasons Stevens shifted his view was due to the fallibility of these verdicts, which was discovered after the introduction of DNA testing.

Chief Justice John Roberts praised Stevens upon his retirement as someone of “alloy collegiality and independence.” Bill Barnhart cleverly argues that Stevens had “alloyed concepts of judicial restraint and pragmatism.”

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