Supreme Court

Justice John Paul Stevens, RIP

An admirable man with a distinguished career as a Supreme Court justice. But also the author of some of the more problematic opinions of his era.

|The Volokh Conspiracy |

Supreme Court Justice John Paul Stevens.

Retired Supreme Court Justice John Paul Stevens passed away tonight, at the age of 99. Stevens served on the Supreme Court for almost 35 years (1975-2010), one of the longest tenures in the Court's history. Although a Republican appointee, he voted with the liberal wing of the Court on most contentious issues.

Stevens was notable for his independence and devotion to duty, both of which are amply evident in his fascinating recent memoir, The Making of a Justice: My First Ninety Four Years. I never had the privilege of meeting him myself. But I know a number of people who worked for him as law clerks. All speak of him with great admiration.

In his statement on Justice Stevens' passing, Chief Justice John Roberts (who served with Stevens during the latter's last five years on the Court) praised his colleague's "inimitable blend of kindness, humility, wisdom, and independence." Stevens was also one of the last prominent public servants from the generation that fought and won World War II, in which conflict he served in the Navy and won a Bronze Star.

Justice Stevens was not a prominent advocate of any specific theory of constitutional interpretation (like Justice Antonin Scalia with originalism); nor was he primarily known for shaping one or two specific areas of legal doctrine (like Justice Anthony Kennedy in the field of gay and lesbian rights). His legacy rests primarily on his numerous opinions across a wide range of issues. That makes it harder to assess, especially at a time when many of the issues he wrote opinions on are still highly controversial.

It will, therefore, probably be a long time before we reach any consensus on his place in legal history. For example, it is possible future generations will agree with him that the Court made a terrible mistake in recognizing an individual right to bear arms on the Second Amendment, which he considered the worst decision the justices made during his time on the Court. In that event, his dissent in District of Columbia v. Heller, might go down in history as one of the great opinions of its era. But it is also entirely possible that the verdict of history will go against him on this issue or that it will remain closely contested.

While I  have great respect for Justice Stevens, I also believe that two of his majority opinions—Gonzales v. Raich and Kelo v. City of New London, were among the most problematic Supreme Court decisions of the last several decades. I hope both will someday be overruled. But I should add that Justice Stevens deserves great credit for admitting that his majority opinion in Kelo was based in part on a significant mistake (though he continued to believe he got the bottom-line result right). It is extremely rare for a Supreme Court justice—or any prominent jurist—to publicly recognize he made a serious error in one of his most famous opinions. Whether we agree with his views or not, we have much to learn from Justice Stevens' honesty, integrity, and humility.

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  1. As to Second Amendment jurisprudence, it’s always worth remembering the words of our then-Constitutional-Law-Professor-in-Chief, Barack Obama: “Let me be absolutely clear – like I’ve said many times before, I believe that the Second Amendment guarantees an individual right to bear arms. Period. No matter how many times people try to paint me as holding a different position.”

    1. Yes, and let us be perfectly clear: He believed that government was entitled to trample all over that right, or utterly extinguish it, for the least of reasons.

      Look, Obama was resorting to a rhetorical trick that it all too common among anti-gun politicians who think admitting it would be tactically unwise: Declare you believe in a right to keep and bear arms, and then privately define it in such a manner that it never gets in the way of any conceivable gun control law.

      Usually as a “right” to be armed while in military service with the government.

      1. The right to bear arms in service of the government is usually presented as the alternative to the individual right doctrine. I think Obama’s unspoken position was in what kinds of “arms” are included. IE no handguns, no “assault weapons,” no semiautomatics, etc.

        So Obama think you have an individual right to bear arms, so long as its nothing more than a musket

        1. Correct. Even Scalia, writing in Heller, said that the sale, use and ownership of guns could be restricted to some degree. A point that seems to have escaped the VC’ers.

          1. No, it hasn’t escaped the VC’ers. As a matter of fact, they’re very well aware of what that philosophy entails. The question is what does that “some degree” entail? And since that runs the gamut from no restrictions to only having a gun if you’re law enforcement, and unloaded in your own home, and kept in a safe to not be brought out unless you’re working.

            I’m not sure the founding fathers leaned toward that last example more than the first one.

            1. Gun absolutists are going to be among my favorite casualties of the culture war in general (and of the collapse of the Republican Party’s competitiveness in national elections in particular).

              I hope the backlash against gun absolutists does not interfere with a right to possess a reasonable firearm for self-defense in the home, but the gun nuts’ counterproductive belligerence may provoke a backlash of unfortunate degree.

              1. What “counterproductive belligerence”? I only see that on the other side. The lefty politicians who come out and say “I guess we’ll come and take them.”

              2. The only “backlash” will be the well-armed patriotic right against the leftist traitors. Conservatives have more bullets than the left has ballots, and that’s even if you grant citizenship to every mestizo in Latin America.

              3. Seriously Rev, have you looked at the polling data? Gun rights are one of the few victories the Right has had in the culture wars in the past 50 years.

                1. He’s not wrong, in the sense that, unless the Right manages to wrest the education system out of the Left’s hands, the Left IS eventually going to win, and yes, even on guns.

                  Unless they’re stupid enough to try to push confiscating them too soon, and spark a civil war they can’t win today, but might 50 years from now.

        2. The right to bear arms in service of the government is usually presented as the alternative to the individual right doctrine.

          Which is absurd, of course. Why would the right of the government to provide soldiers with weapons (which every government in history has done) need to be spelled out? It goes without saying. And why would such a silly, unnecessary provision be plopped down in the middle of a bill of individual rights?

          1. Slocum – you and I had the exact same thought, apparently. You’re just a faster and more succinct typer.

            🙂

          2. Under the collectivist interpretation of the Second Amendment, it prevents the federal government from disarming the state militias.

            But Article I, Section 8 does specify that Congress can organize and arm the militia because the federal government is a government of limited and enumerated powers.

            Also, the original batch of amendments to the Constitution included more than just has become known as the Bill of Rights, including proposed amendments about the organization of the federal government and the relationship between the state and federal government (the original version of the Tenth Amendment only referenced the states, not the people).

            1. It all may be true that Congress CAN organize and arm the militia, but nowhere in that clause does it say they can DISARM them.

        3. I’ve seen this argument before, but why on God’s green earth should such a right be enshrined in the constitution when it’s inherent that “service of government” would require you to have a firearm (armed forces, police, etc.).

          The answer is, and has been rehashed thousands of times, that the founding fathers wanted people to have an individual right OUTSIDE of service to government. Anyone can read any other papers they wrote where they said just that.

          1. “Outside” isn’t quite right. They believed there were benefits to an armed populace, a la Switzerland, but the primary benefit was to create a disciplined, regulated fighting force that could defend the Republic. And that is the reason the Second Amendment says what it says.

            And that, in turn, suggests two things: 1, there is absolutely an individual right to own weapons, and 2, that regulations of that right that assist the government in creating a disciplined fighting force that will serve the state are constitutional.

            1. Go back and re-read the text of the 2nd amendment. It is the militia itself that is the thing to be “well regulated”, not the right to won weapons.

              1. And everyone forgets the definition of “well regulated”.

                “”Well-regulated in the 18th century tended to be something like well-organized, well-armed, well-disciplined,” says Rakove. “It didn’t mean ‘regulation’ in the sense that we use it now, in that it’s not about the regulatory state. There’s been nuance there. It means the militia was in an effective shape to fight.”

                So oddly enough, well-regulated meant the opposite of what it means today. It had nothing to do with government regulations.

                1. True, but pointing out that “well regulated” in the text of 2A applies to the militia and not to the right to keep and bear arms works regardless of the definition of “well regulated” the other side want to use.

                2. A lot of what we would call “regulations” do relate to militia discipline. For instance, a federal law requiring anyone who wants to own a weapon to take periodic safety and marksmanship classes is pretty obviously perfectly constitutional.

                  1. Sure, but that doesn’t accurately describe more than 1% of actual existing firearms regulations.

                    Hand gun bans/limits, “assault weapon” bans limits. purchase license requirements, waiting periods, background checks, none of these relate in any rational way to militia discipline.

                    And in any case, you ignore the fact that the militia has been regulated out of existence in favor of the standing army.

                  2. A federal law requiring people to take periodic safety and marksmanship classes would be obviously constitutional. A federal law conditioning the explicit right of gun ownership on such a law, not so much.

                3. It meant regulated in the same sense sense as is now largely limited to engineering – a regulator or governor that keeps the device working within its designed range.

                  In the context of a militia it simply means well functioning. And your militia (in the late 18th century) is not going to be well functioning if your militiamen are not used to handling and using arms.

                  The grammatical structure of the 2nd Amendment is perfectly clear. Government infringement of the right to bear arms is prohibited unconditionally. The preamble about the militia is not a condition for the exercise of the right, but an explanation for the prohibition

                4. The Overmountain Men — the Watauga Association militia that mustered at Sycamore Shoals and marched to engage Ferguson’s Loyalist Militia at King’s Mountain in the early days of the Revolution, were required by militia regulations to possess a military firearm, a personal supply of ammunition suitable for a military engagement, to meet regularly to present arms for inspection, to drill, to target practice, etc.

                  They also had at home firearms for hunting food, protecting livestock from predators, recreational target matches, and other non-militia uses, including self-defense. Nothing in the militia regulations banned or prohibited non-military arms from possession by militia members or the general law-abiding public. (In fact there were in militia possession spare military arms that were “rented” to those who could not afford a personal military grade weapon but could afford to pay a tax or fee for duration of militia muster.)

                  People heavily invested in the belief that gun control is good are willing to do great mental gymnastics to twist the Second Amendment into Justice Stevens’ preferred reading of infringing the right to keep and bear arms for people who are not active duty government enforcers.

                  Gun control is a bad idea because when you ban anything that people feel they have a right to have and feel they benefit from having it (guns, alcohol, marijuana, erotica, abortion, etc.) what happens is the creation of grey and black markets in defiance of the ban, and the fostering of contempt of the law. The bans do not accomplish the good that the banners expect, because the illicit market is more prone to pandering to abusers than the legal market would be. Gun control proposals usually fail because enough people eventually realize this, not because the NRA is promoting a politically incorrect interpretation of the 2A as Stevens argued.

            2. “and 2, that regulations of that right that assist the government in creating a disciplined fighting force that will serve the state are constitutional.”

              Indeed. The problem is that most gun control laws have the opposite aim; Not assuring that a trained militia will exist or can be easily raised, but rather disarming as many people as feasible.

              1. Exactly. A requirement to own and be proficient in a modern weapon of war currently issued to the regular armed forces would itself be constitutional, and was in fact in place in many locations after the founding.

                So if Congress passed a law requiring the purchase and possession of an m16, or pay an annual fine to exempt yourself from militia duty, that would be an exercise of their power under the 2nd amendment.

            3. “but the primary benefit was to create a disciplined, regulated fighting force that could defend the Republic.”

              Or prevent the Federal government from using its standing army to oppress the states.

              1. That’s not true. Using force against the federal government is defined as Treason, the only defined crime in the Constitution.

                So the Constitution, by it’s express terms, creates no right to turn arms against the federal government. It’s clear some founders believed it should have, but the language of the Constitution is absolutely clear on this.

                1. No, it is true. James Madison said so, right there in the Federalist Papers, and I care a whole lot more about what James Madison said than what Dilan Esper thinks.

                  1. James Madison is not the Constitution. As I said, the Constitution says that levying war on the United States is treason and may be tried as a capital offense. In the face of clear language, the statements of framers are irrelevant.

                    1. No they aren’t, and James Madison succinctly explains why in that very same Federalist Paper. And since you claim is about what the founders believed were the benefits of an armed populace, it seems rather odd for you to now claim that what they thought is irrelevant.

                    2. It also says you can only be convicted of treason on the testimony of two separate eye witnesses to the same overt act of treason.

                      All the modern forensic evidence, video evidence (security cameras), it would all be inadmissible in a trial on a charge of treason.

                      There is a reason why the US Congress has passed ordinary criminal laws covering everything that would fall under the constitutional definition of treason and the last time any person was brought to trial on a direct charge of treason was back in the 19th century.

      2. He evolved.

        Like he did with gay marriage.

        And then he went on Ellen to dance about it.

      3. I agree with you that many lefties try to limit thev “right” to keep and bear arms to military service. But that’s silly. Try arguing with your CO that you have such a right when your mission does not require it. I was a Communications Officer in the Marine Corps during peacetime. I had access to weapons only during periodic requalification.

  2. “inimitable blend of kindness, humility, wisdom, and independence.”

    I support speaking no ill of the dead, and even of spinning their lives in the obits to focus on the positive.

    In that spirit, I’d allow “kindness” and “independence.”

    But humility and wisdom would be harder sells.

    1. The only kindness he showed was the same sort one has for puppies and kittens. One of the hallmarks of true kindness is accepting that other people have agency. Too many of his decisions were of the patronizing sort, because he knew better than everybody else what was best for them; or maybe he just knew that government knew better than them.

  3. its sad to see someone pass away but I can’t help but laugh at the people who always turn up on cue lionizing the deceased and signalling their devotion to people/especially famous people they had little to do with in life. The communal mourning rituals, which arguably have more to do with status climbing than the deceased, of 21st century western society is such a fascinating study.

  4. “…Justice Stevens was not a prominent advocate of any specific theory of constitutional interpretation (like Justice Antonin Scalia with originalism)…”

    I think you meant to write, “…UNlike Justice Scalia with originalism)…” Otherwise, I am not sure the sentence means what I think you intended.

    1. In this sentence, it means “as with”, so makes sense.

    2. It means “like Justice Scalia was a prominent advocate of originalism.” The parenthetical relates to the “prominent advocate of…” clause, not the sentence as a whole.

  5. I’m always sad when some old geezer dies, because I’m 60, and my dad died shortly after retiring, and guys who reach 99 give me hope.

    And Stevens was retired, beyond causing (much) more damage.

    But, seriously, his majority opinions were awful enough, his minority opinions were often horror shows.

  6. Yes, Stevens represented a spirit of civility and humbleness that seem lost in modern politics and I am sure he was a wonderful guy. That said, if there is any consistency among his opinions, it seems to be defending the supremacy and power of the state.

  7. “it is possible future generations will agree with him that the Court made a terrible mistake in recognizing an individual right to bear arms on the Second Amendment, which he considered the worst decision the justices made during his time on the Court. In that event, his dissent in District of Columbia v. Heller, might go down in history as one of the great opinions of its era.”

    If that is the case, one can’t help but think that it is a very strong possibility that those “future generations” will no longer be living in a united country.

  8. I found it interesting that Stevens chose to retire in 2010 when he was still in fine health. If he stayed on he would shortly break Holmes’s record as the oldest Justice, and in two years would break Douglas’s record as the longest-serving.

    My theory is that he deliberately let those records stand, as a warning to future Justices that one must not stay on too long. Holmes should have retired a year before he did, and both Douglas and Field (the second longest-serving) also stayed on too long.

    1. Or perhaps he thought it was wise to retire when the Ds had a nearly filibuster proof majority in the Senate ?

      1. He was appointed by a Republican President.

        1. What does that have to do with him apparently choosing to retire when he could be guaranteed that another statist would fill his seat?

        2. An instance of the frequent Republican failure to appoint originalists.

          1. I think of it as the frequent Republican failure to be honest while campaigning for the office. It’s not that hard to appoint good judges, Republican Presidents were lousy at it because they mostly meant to be.

          2. The predecessor to originalism, strict constructionism, had just emerged as a judicial philosophy and not just a civic philosophy, so it’s not much of a surprise. Originalism wasn’t much of a thing (in practice, not theory) before Scalia.

  9. Nice guy. Blah. Blah.

    Didn’t he write Kelo?

    They’re all nice until someone loses an eye.

    1. This is the guy who, during WWII, agonized over his part as a codebreaker in sending fighters to shoot down Yamamoto’s airplane, because they were sent to kill a specific Japanese military officer. Killing an anonymous group of soldiers or sailors was just fine, but killing one man was morally suspect if he was such an _important_ man that we knew his name.

      “Nice” guys aren’t morally twisted like this.

      1. Did he keep the Bronze Star he was awarded for his service in the codebreaking team responsible for that?

        Charles Lane , “John Paul Stevens, longtime leader of Supreme Court’s liberal wing, dies at 99”, Washington Post, 16 Jul 2019.
        The targeted killing of Yamamoto troubled Justice Stevens, who explained in a 2005 interview with law professor Diane Marie Amann that it sowed his first doubts about capital punishment, which he considered another form of deliberate killing by the state of a named individual.

        1. Stevens saw the targeted killing of Admiral Yamamoto during wartime as the equivalent of executing a prisoner.

          I can see important differences.
          (a) Admiral Yamamoto alive in charge of the Imperial Japanese Navy was in a position to kill thousands more Americans and thus constituted a continuing danger.
          (b) A condemned man in prison for his crime is effectively neutralized.

  10. He’s a “Ford Judge”

    Am I doing it right?

  11. “While I have great respect for Justice Stevens, I also believe that two of his majority opinions—Gonzales v. Raich and Kelo v. City of New London, were among the most problematic Supreme Court decisions of the last several decades.”

    Well, whatever are the most “problematic” Supreme Court decisions of the last several decades, Stevens was on the right side of Morse v. Frederick, which was the stupidest supreme court decision of the last several decades.

  12. Let’s face it, he was a terrible judge, from the make-it-up-as-you-go along-to-get-the-result-you-like school. Hence no discernible interpretive philosophy, beyond teleology.

    May have been a great bloke and a wizard codebreaker, but as suited to the judicial bench as I am for the ballet.

  13. He was a political operator in a political theater. He was also very intelligent and achieved just about the highest level of power a lawyer can hope to reach in the profession.

    But he wasn’t a particularly insightful or influential justice. He made some good calls and he made some bad calls. But he wasn’t a particularly memorable justice, like Scalia or Ginsburg.

  14. For what it’s worth, Stevens was the last SCOTUS justice to have ever been in private practice.

    1. May wish to do a little more research before you post.

      https://en.wikipedia.org/wiki/Brett_Kavanaugh#Private_practice

      In 1984, she (Sotomayor) entered private practice, joining the commercial litigation practice group of Pavia & Harcourt in Manhattan as an associate.

      John Roberts: “before spending 14 years in private law practice.”

      I chose three names at random and this is what Wikipedia told me. No idea about the other six as I think this proves the point.

  15. Crikey Somin, there’s not speaking ill of the dead, and there’s whitewashing. He was a narcissistic ass who couldn’t keep his cakehole shut post-retirement. The Kelo decision alone, whether or not he later recognized its issues, was more than enough to invalidate any opinion he had once off the bench. Some folks retire and get a hobby, some have such a monumental ego and lack of (intellectial) maturity that they simply cannot leave the job to those who are now actually doing it.

    1. Your concern for not speaking ill of the dead without crossing over into whitewashing is very convincing.

  16. Notable opinions and dissents

    Heller Dissent – Tried to demonstrate via original meaning that the Right to keep and bear arms limited to service in the militia by citing numerous historical writings that RTKA was intended for Militia, while prentending that zero historical writings existed for the individual right even though Scalia citing numerous such historical writings.

    McDonald dissent – the phrase “all laws” in 14A somehow means we can pick or exclude any laws we chose to incorporate.

    CU dissent – Corporations and Associations have no 1A rights because they arent people. Under his line of legal reasoning, the government can take property without due process from a corporation, trust, partnership, estate, association, because they are not people – even though the entity is owned by a person.

    Kelo – nuff said previously

    1. Excellent. Proof that self-absorbed nitwits can become Supreme Court justices.

    2. McDonald dissent – the phrase “all laws” in 14A somehow means we can pick or exclude any laws we chose to incorporate.

      Uh, the phrase “all laws” does not appear in the 14A.

      CU dissent – Corporations and Associations have no 1A rights because they arent people.

      That isn’t what his dissent said.

      1. Yes, and no. Stevens wrote, “The conceit that corporations must be treated identically to natural persons in the political sphere is not only inaccurate but also inadequate to justify the Court’s disposition of this case.”

        It wasn’t that corporations had “no” rights, but that they had substantially inferior rights. But this is a bit of a rationalization, since in Stevens’ view, those rights were so inferior as to be nonexistent for all practical purposes; The corporation could be required to finance speech from a specified fund that could be arbitrarily limited.

        Pretty typical Stevens, acknowledging a right, but such a limited right that it is basically worthless.

        Also typical in that he doesn’t accurately characterize the majority’s argument; Not that corporations are indistinguishable from natural people, but that Congress’s prohibition on infringing speech rights is not qualified on the basis of whose rights are at stake. It’s a blanket prohibition on the entire enterprise.

        1. Indeed. Citizens United is a fascinating case, and Michael Moore is likely most directly responsible for overturning campaign finance law (with the FEC helping).

          It all goes back to Farenheit 9/11. It was a film that was highly critical of Presidential candidate, and was released on Direct TV just 2 weeks before the November election, a film paid for by a commercial corporation. A clear cut case of electioneering, in violation of the law, and so the Citizens United group called the FEC to stop it. And the FEC said…no. No problem here. (imagine if they’d ruled differently for a second).

          So Citizens United said…really? And they proceeded to set themselves up as a non-profit film organization, releasing a few documentaries over the next few years. And then in November of 2008, the decided to release a movie “Hillary: the movie” which was highly critical of a presidential candidate. And now the FEC said “Nope, can’t do it”.

          And the Supreme court looked at this case, and the previous case, and it was clear. The prohibitions on speech had to go. Especially if the administrative types were playing favorites.

    3. AMENDMENT XIV.

      Section 1. All persons born or naturalized in the United States
      and subject to the jurisdiction thereof, are citizens of the
      United States and of the State wherein they reside. No State
      shall make or enforce any law which shall abridge the privileges
      or immunities of citizens of the United States; nor shall any
      State deprive any person of life, liberty, or property, without
      due process of law; nor deny to any person within its
      jurisdiction the equal protection of the laws.

      The Opinion of the Court in DC v Heller 2008 cites:
      Congress enacted the Freedmen’s Bureau Act on July
      16, 1866. Section 14 stated:
      “[T]he right . . . to have full and equal benefit of all
      laws and proceedings concerning personal liberty,
      personal security, and the acquisition, enjoyment, and
      disposition of estate, real and personal, including the
      constitutional right to bear arms, shall be secured to
      and enjoyed by all the citizens . . . without respect to
      race or color, or previous condition of slavery. . . . ” 14
      Stat. 176–177.

      One of the gun banner’s favorite SCOTUS decision is Cruikshank which undercut Amendnent XIV and the civil rights acts passed after the end of the Civil War.

  17. “For example, it is possible future generations will agree with him that the Court made a terrible mistake in recognizing an individual right to bear arms…”

    Only people who are confused about what the job of the Supreme Court is, it’s to interpret the law not to make it. If it’s a mistake to have an individual right to keep in bear arms then it’s up to congress and the states to repeal the 2nd amendment just as they did the 18th amendment, it’s not like they don’t know how to do it the right way.

    1. Yep, the Second Amendment merely acknowledges a natural right, and says it cannot be curtailed. Not really rocket science.

  18. “inimitable blend of kindness, humility, wisdom, and independence.”

    Bullshit. He was a megalomaniac. Not humble, at all. Not wise. I don’t know how to interpret ‘independence.’ Does it mean not aligned with any party? Also bullshit.

  19. I hope his pro-abortion ways resulted in enough sacrifices to please Moloch…

  20. I did not detect any swipes at Trump. A missed opportunity for the professor.

  21. All you have to know about him is that he was willing to let the government criminalize flag burning.

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