What do you see as the legacy that Justice Stevens is leaving behind?
I see several aspects to Justice Stevens’ legacy. First, he leaves a legacy as someone who was a real independent thinker. He was appointed in 1975 as a moderate Republican, President Ford’s only appointment to the Supreme Court. At the time, President Ford was still wary given the aftermath of the Nixon pardon, and he didn’t want to make a big ideological statement. Ford said that he appointed Justice Stevens because he was the best legal mind he could find. So Justice Stevens came to the Court as a moderate and independent thinker, and he retained that independence.
For example, Justice Stevens never joined the cert pool. For many years he was the only justice who wasn’t a member of the cert pool. As a result, his chambers reviewed all the cert petitions on their own – even though the number of cert petitions doubled during the time he was on the Court, from fewer than 4,000 when he started to more than 8,000 today. It’s a lot of work, but Justice Stevens thought there should be a fresh set of eyes looking at these petitions – that the justices shouldn’t all rely on one clerk’s summary of a petition.
Justice Stevens has spoken about the importance of learning on the job, and he has shown that he is willing to rethink his position on issues. Over the years, his thinking has evolved on a number of issues. The death penalty and affirmative action are two important examples. Here’s somebody who’s about to celebrate his 90th birthday next week, and usually we tend to become more set in our ways as we get older. So I think he is an inspiration to all of us in that he has been willing to take a fresh look at things and rethink his positions.
Another legacy Justice Stevens will leave behind is his tremendous work ethic. For many years, he had only two clerks at a time when the justices were entitled to have four. He also drafted his own opinions, which is fairly unusual—not just the rhetoric and the legal analysis, the sexy parts of the opinions that are more likely to get quoted and remembered—but also the statement of facts and the more mundane parts of the opinions.
Finally, there’s a lot of talk about how the legal profession has become much less civil over the years, but Justice Stevens has always had a reputation as being very polite and a genuinely nice person. There are the bow ties that he’s famous for wearing. He doesn’t jump right in during an oral argument. He doesn’t ask the first question. Midway through the argument, he’ll politely ask the lawyer’s permission to ask a question, which is unusual for a judge in oral argument.
What are the most important things for students to remember about Justice Stevens?
Justice Stevens is not known so much for having a strict judicial philosophy in the same way that Justice Scalia is an originalist, for example. Rather, Justice Stevens is known for his attention to detail. He has a reputation for being very meticulous, which I think is an important quality for a lawyer. Students are surprised to learn when they get to law school that every word matters, that something important might be hidden in a footnote, and that you really have to be a careful reader and a careful writer. Justice Stevens was known for being exceedingly meticulous, very concerned about the facts of the cases, and those facts and details were important to him in making his decisions.
What are the implications of Justice Stevens’ retirement?
His retirement is probably unlikely to affect the outcome of many cases. I would assume that whoever President Obama appoints will tend to vote in the same way Justice Stevens would have voted. But Justice Stevens has been on the Supreme Court for almost thirty-five years. He’s served during seven presidencies, under three chief justices. He’s been on the Court more than ten years longer than any other justice on the Court today. He’s the fourth longest serving justice in the history of our country. You lose a lot of institutional memory when you lose somebody who has been on the Court for that length of time.
Justice Stevens also has been the senior associate justice for about fifteen years, which means he has the opinion-assigning power in the cases where the chief justice is in dissent. Whoever replaces Justice Stevens will become the junior justice, so that task will move on. I think he’s done a very good job in that role. He’s been selfless, assigning opinions even in some of the major landmark cases to other justices. For example, in Grutter, the case upholding the University of Michigan’s affirmative action policy, he assigned the opinion to Justice O’Connor. In Lawrence v. Texas, the case that struck down the sodomy laws in Texas, he assigned the opinion to Justice Kennedy. Those were both very high profile opinions that he could have kept himself. I don’t think it was just a share-the-wealth type of thing; he thought if he had one of the shakier votes writing the opinion, he would be more likely to preserve his majority.
Do you have any recollections of Justice Stevens that you could share with us?
I heard Justice Stevens speak not that long ago to a group of law students. He was well into his 80s at the time. He talked about the Eleventh Amendment, about state sovereign immunity in federal courts, a very technical subject with a lot of intricacies. He not only understood those intricacies and details, but was able to explain them in a way that law students could understand. Apparently, his mother lived to be 97 and he’s got a brother who practiced law until he was 91, so he’s got some good longevity genes. And I was impressed that was the talk he chose to give. Supreme Court justices are very busy, and when they are asked to speak, they often choose a general topic, perhaps about their judicial philosophy. But this was a detailed academic talk, and it was very impressive.
How do you think the confirmation process will proceed?
It’s really hard to say. I think it all depends on who the nominee is. There’s been a recent tradition of not filibustering judicial nominations. On the other hand, it’s an election year and we have a very divided country, a very divided Senate, and a very divided Supreme Court. I think we’ll just have to see who the nominee is.