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President Barack Obama awards former Supreme Court Justice John Paul Stevens the Presidential Medal of Freedom on May 29, 2012, in the East Room of the White House. (AP file photo)
President Barack Obama awards former Supreme Court Justice John Paul Stevens the Presidential Medal of Freedom on May 29, 2012, in the East Room of the White House. (AP file photo)

Commentary: Stevens was brilliant and unafraid of change

By Noah Feldman
Bloomberg Opinion 

The career of Justice John Paul Stevens, who died Tuesday at 99, stands as a reminder of the U.S. Supreme Court of an earlier era, when partisanship was rare, pragmatism reigned, and a moderate Republican like Stevens could evolve into one of the most important liberal justices of the post-World War II era.

Even at the height of Stevens’ influence in the late 1990s and early 2000s, when he had become the de facto leader of the court’s liberals, Stevens represented something of a throwback — a connection to a Supreme Court world only dimly remembered or read about in history books.

For one thing, Stevens belonged to the greatest generation. He served as a naval intelligence officer in the Pacific theater during World War II. He was the last justice to have served in the military abroad during wartime. The experience was relevant years later when Stevens found a brilliant legal mechanism to apply the Geneva conventions to the military commissions proposed by the George W. Bush administration after the Sept. 11 attacks.

For another, Stevens had clerked at the Supreme Court in the 1947-48 term for the liberal Justice Wiley Rutledge, an appointee of President Franklin Delano Roosevelt. This experience connected Stevens to the great justices of the Roosevelt era, including Felix Frankfurter, Hugo Black, William O. Douglas and Robert Jackson. In a crucial Bush-era decision on detention of suspected al-Qaeda members, Rasul v. Bush, Stevens was able to rely on a dissent he had helped draft for Rutledge in the obscure case of Ahrens v. Clark to help preserve the right of habeas corpus for detainees held at Guantánamo Bay, Cuba. Without Stevens’s doctrinal brilliance and intimate knowledge of the precedent, it would’ve been essentially impossible to reach this legal conclusion.

Make no mistake about it: Stevens was a modest man who eschewed showmanship of all kinds, but he possessed a genuine doctrinal brilliance. After being graduated with highest honors from the University of Chicago in English, he achieved what was at the time the highest grade point average in the history of Northwestern Law School. His Supreme Court opinions often reflected a subtlety of mind that could be missed by those more inclined to admire their steady, sensible nature.

Stevens also wrote the first draft of his opinions in an era when that practice had all but disappeared. He employed three law clerks, not four, as if to say in his quiet way that he could do the work of a justice plus a law clerk in one. He also declined to have his law clerks participate in the certiorari pool in which the other justices took part — a feat possible only because of Stevens’s own speed, brilliance and work ethic.

Several of Stevens’s opinions and views have already stood the test of time. He was the author of the court’s landmark opinion in Chevron v. Natural Resources Defense Council, the central decision in modern administrative law. The opinion is so straightforwardly and simply written — so determined not to draw attention to itself — that Stevens’s authorship is frequently ignored in discussions of the case, as though the opinion had somehow written itself. The Chevron decision is now under attack by Justice Neil Gorsuch and the court’s other hardline conservatives, but in its day the unanimous opinion enjoyed support of everyone from the arch-conservative Justice Antonin Scalia to the arch-liberal Justice William Brennan. That, too, is a reminder of the time when core doctrines of law could often be imagined as separate from political ideology.

It’s worth noting that when Stevens wrote the Chevron decision, he was still very much a centrist. Nominated to the Court of Appeals by President Richard Nixon, he made it onto the Supreme Court during the brief presidency of Gerald Ford. He replaced Douglas, who turned out to be the only justice in the history of the court to serve longer than Stevens. The Senate confirmed him 98-0, a tally that is inconceivable in our current political environment.

As a moderate Republican, Stevens began his career as a skeptic of affirmative action. But he moved steadily leftward during the 1980s, eventually coming to uphold the practice. By the 1990s he had become a genuine liberal force. The retirements of Brennan and Justice Thurgood Marshall left him as the left-most justice on the court.

Stevens’s most important contribution to the jurisprudence of the modern era came in the sequence of Bush-era cases about detention, military commissions and Guantánamo. During this extended period of judicial activity, he was the acknowledged leader of the court’s liberal wing. Skillfully and patiently he brought Justice Anthony Kennedy with him. The court’s legacy of standing for the rule of law and against lawless detention and kangaroo trials owes its existence more to Stevens than to any other justice.

Why Stevens evolved leftward is a fascinating question. As a justice he seemed to be almost entirely without sentimentality, very much unlike Justice Harry Blackmun, the Nixon appointee who moved even further to the left than Stevens but never led the court’s liberal wing as Stevens ultimately did. He was also never an ideologue.

Perhaps the most likely explanation is that Stevens simply experienced the Reagan years as reactionary more than moderately conservative in the Ford mode. As conservatism changed, Stevens gradually parted ways with its tenets.

With his polite demeanor, neat bowties and avid tennis game (which he is said to have played into his early 90s), Stevens always looked the part of the moderate Republican, even after he had become a liberal. After retirement, he continued to write book reviews, including several for the New York Review of Books. The last piece he published during his lifetime, I believe, was a review in the Michigan Law Review of a biography I wrote about James Madison.

Stevens liked it — moderately. He took the opportunity to note that the history of the Second Amendment as presented in the book supported his own view in his important dissent in District of Columbia v. Heller, when he stood up for gun control against the conservatives.

Today’s justices come so vetted to avoid deviation from ideological and partisan pressures. Stevens, the justice from the greatest generation, reminds us that it wasn’t always so — and that great justices develop and change, becoming greater as they go.

Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter.

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