S1: This ad free podcast is part of your Slate Plus membership.
S2: It’s really a statement about our times. I think that we tend to associate being a kind of eccentric loner with not being predictable in a partisan or ideological sense.
S3: May I ask Good luck may be an awfully elementary and stupid question.
S4: One of the ways you saw his humility the most was how when he interacted with us he just really conveyed to us that he felt like he could learn from us as much as we could learn from him.
S5: Hi and welcome to Anika Slate’s podcast about the courts the Supreme Court and the law. I’m Dahlia Lithwick and I cover those things for Slate and this week we wanted to bring you are promised episode memorializing Justice John Paul Stevens who served for 35 years on the Supreme Court and died on July 16th at the age of 99. After suffering a stroke. Now before we get to Justice Stevens let’s note that we are two weeks and change away from the start of the 2019 term which we will preview in depth next show with Dean Erwin Chemerinsky and although the court is not yet formally in session. This week the justices handed down a surprise seven to two decision to allow President Trump’s asylum ban to go forward. That’s the ban that prohibits any migrants who have resided in or traveled through third countries from seeking asylum in the United States so the ban will be allowed to stay in effect while this case is decided in the lower courts. This decision which was not explained by the justices lifted a lower court’s stay of the policy and Justice Sonia Sotomayor writing for herself and Ruth Bader Ginsburg issued a very stinging dissent writing quote granting a stay pending appeal should be an extraordinary act. Unfortunately it appears the Government has treated this exceptional mechanism as a new normal. Historically the government has made this kind of request rarely now it does so reflexively bow and then she quoted friend of Slate. Steve Vladeck.
S6: On today’s show as promised we wanted to spend some time talking deeply and reflectively to people who clerked for Justice John Paul Stevens Stevens who retired in 2010 at the age of 90 was the second oldest third longest serving justice ever to sit on the court. He also somehow migrated from being a pretty reliable centrist Republican jurist at the start of his career to the quiet leader of its liberal wing. By the time he retired something that I want to try to understand later on in the show. But above all things Stevens was a man who prized what I can only characterize as these old school values of understatement humility respectful disagreement civility patriotism that in some ways are unique to the greatest generation. When he died I said on this show that he always somehow managed to surround himself with law clerks who embodied some of those qualities themselves and I’m delighted to welcome two of them to the show today. I should note that today’s show coincides with National Constitution Day which this year will be marked on Tuesday September 17th. With us today is sunny West she’s Otis Brumby Distinguished Professor of First Amendment law at the University Of Georgia School of Law where she focuses on issues involving the First Amendment and the U.S. Supreme Court. Her research appears in legal journals such as Harvard Law Review the UCLA Law Review the California law review and she clerked for Justice Stevens in the 1999 to 2000 term. She also served as one of the honorary pallbearers at his funeral in July. Jamaal Green is the Dwight Professor of Law at Columbia Law School. His scholarship focuses on the structure of legal and constitutional argument. Green is the author of more than 30 law review articles he’s a frequent media commentator on the Supreme Court and Constitutional Law. Jamal served as law clerk to Justice John Paul Stevens in the 2006 2007 term. So Sonya and Jamal. Welcome to the podcast. Thank you for making a little bit of time to reminisce a few months later about Justice John Paul Stevens.
S7: Thank you very good to be here. Thank you so much for having me.
S8: Do either of you want to dispute the fact that the Stevens clerks were uniformly incredibly nice people.
S9: I I take the Fifth.
S8: They’re definitely mostly nice people they mostly nice people. Without naming names maybe we can just start with the biography. I think people probably know the general outlines but but maybe we’ll pan back and review because he really was from an era that I think most of us just read about in books. Justice Stevens was born in 1920 in Chicago to a prosperous family that survived financial ruin in the 1930s. He watched his father Ernest Stevens arrested on charges that he and two other family members had embezzled funds to cover losses at their hotel. Sun in your tribute you wrote that quote in the lobby of his family’s downtown Chicago hotel the young John Stevens crossed paths with the likes of Amelia Earhart and Charles Lindbergh. Can you talk a little bit about how these brushes with both great wealth and privilege and then great loss in near ruin may have affected his world view.
S7: I think there are ways that some of these key moments in Justice Stevens is childhood and how they might have effect impacted him are both you know predictable in some ways and also in other ways really just utterly surprising. So you mentioned how his father was convicted of embezzling it was more than a million dollars and that conviction went up on appeal and was overturned by an appellate court who said that there was not a scintilla of evidence that his father had committed a crime and that rather he might have had some bad judgment. He was acting with good intentions and trying to save the hotel. So Justice Stevens you know as a small child saw firsthand how the criminal justice system how it can make a mistake but also how it has the power to correct that mistake. He also saw how the toll of something like this the toll it can take on his entire family because while those charges were pending his grandfather died of what they say was a stress induced stroke and his uncle fell into a severe depression and ended up committing suicide. So I think when you look at that part of his life it’s just completely not surprising that he would eventually become a justice who was very protective of the rights of criminal defendants and very empathetic to the power of the criminal justice system and the importance of appellate judges. But there is this other way where his sort of childhood you know does not seem predictive of the justice he turned out to become because you know at least on paper he grew up in a all of the ways with basically every privilege. You know he had great wealth at least you know for some time he was white Protestant you know straight able bodied you know man. Right. He just had he checked all the boxes he had it all. And yet nonetheless somehow he grew into this just as you just had this absolutely uncanny ability to empathize with people who just came from these very different backgrounds than his. He just had this ability to see out of the eyes of people from whom the world looked very different than the world he inhabited.
S8: Jamal do you have any sort of thoughts on this this point that I think your mind. I mean this is a guy who wore a bow tie. You know he was in some sense every privileged white guy. And yet he really did have this capacious ability to know if it was admit that he didn’t know what he didn’t know or to imagine himself into the shoes of someone else. But it is kind of an improbable quality especially in someone from that time who could have sworn through life just knowing that he knew everything.
S10: You know I think it’s I completely agree with what Sonia says. It’s I think pretty hard to predict just just based on biography that someone like Justice Stevens turns into the really nice really sweet really empathetic person that he very clearly was. I mean sometimes a person is just a nice person and you don’t know where that comes from. I do think there is something to the fact that he was someone who didn’t trust the power of the state and maybe part of that comes from growing up in Chicago and a place where sort of everyone is kind of corrupt. And part of that is feeling like his family didn’t get a fair shake from the government.
S11: I think part of that is he was one of the lawyers investigating some corruption in the Illinois court system before he became a judge and so he was sort of front and center with with power and how power can corrupt people and how power can can really put someone in their place.
S10: And so again I don’t think you could predict that he was the mensch that he was. But but there are parts of his biography that make you understand the perspective of realizing that the little guy is someone who a little guy or gal is someone who might have a story to tell.
S8: It’s also I think just hard to imagine that this is a person who lives through the Jazz Age. He lives through prohibition. He’s famously in the stands at Wrigley Field when Babe Ruth calls is shot in the 1932 World Series. It really feels like he is of another time altogether and then he’s the last sitting justice to have ever served in the military. He signs up in the Navy. He serves as a code breaker in World War 2. Later awarded a Bronze Star. And I wonder Jamal just in terms of I know you’re completely right that we can’t map biography on to who he becomes entirely but how is military service how his time in the military the way he thought about citizenship may have inflicted on the doctrine or the person or the jurist that he became.
S10: Well I do think he’s someone who saw a lot of the world in right. Part of that is is just coming from privilege. And you’re privileged to be meeting Amelia Earhart in a hotel lobby. And and privileged to be a very successful lawyer and so forth. But he was from a cosmopolitan area. He had served in the military. As you mentioned with distinction he was a lawyer. He wasn’t just someone who served in the government and was sort of surrounded by the same people all the time. So he is someone who got a really kind of cosmopolitan education. And I think that that showed through in the kind of person he was and his approach to the law as well. I mean he wasn’t someone who was prone to grand statements about the law. He kind of took things a case at a time and looked for the kind of simple justice. In each case.
S8: And Sunny I know that the knock on Justice Stevens has always been you know that one of the famous cases that he quote got wrong for First Amendment purposes which is what you think about all the time is the flag burning case. This is Texas versus Johnson in the 1989 case that overturned a Texas law making burning an American flag a crime and he famously dissents in this case. And I think that the pat answer is Well that’s because of his military service. He just saw the flag differently and he couldn’t regardless of his first amendment chops. He just couldn’t get there on flag burning is it more complicated than that or is it just this is a guy who served in the flag meant too much damage.
S12: Justice Stevens had a lot of confidence in judging judging as a profession and judging you know as a duty and judging as an art. And so you see in some of these cases and I think that dissent in the flag burning case is a great example where a lot of the arguments against you know having this one thing this one symbol that the government is going to protect and not allow people to destroy because it’s unique in its meaning it was a slippery slope argument like oh well if it’s you know that and you know what about other things that have national importance or patriotic importance. And you know what. What about what’s going to happen here and he had complete confidence that the judges could say no. Now the flag is different. We’re going to have you know just this one thing and it’s different for a reason and so I do think it has that Patriot military experience informing his decision. But it also comes with this idea that he trusts judges to be able to say look at the flag and say it is unique. It has a unique importance to Americans. It plays a unique role. It has a unique history and we aren’t going to be burning down the entire thing if we just say this one item is off limits.
S7: So I think it definitely strives from this sense of duty this sense of patriotism. But it still is in line with a lot of the way he saw the law and in first amendment law in particular just a just a follow up on that and very much in the same vein.
S11: There is a well-known case that Sonya will know involving in regulating porn in a theater and Justice Stevens has this opinion where he says you know it’s not that this doesn’t get covered by the First Amendment.
S10: But you know it’s not the same as you know kind of core political speech and he kind of famously says you know no one march if their son or daughter off to war to protect you know the right to to show specified sexual activities on a theater screen. And that was just his confidence in the fact that a judge can make judgments about how far the Constitution reaches and I think it’s really the same kind of impulse in in Texas versus Johnson.
S12: Even if many people on his sort of ideological side might disagree with him I’d just like to point out everyone one thing about the case and Jamal was just talking about one of my favorite parts about the line he just quoted about how no one marches their son or daughter off to war. He wrote that in the mid 70s. He talked through threw daughter about marching marching off to war at a time when that certainly wasn’t how we viewed women’s roles. That’s off the topic here but it’s always been one of my favorite parts actually about that line.
S13: No it’s incredibly important. I guess this dovetails into this overarching question that I have for both of you.
S14: But Justice Stevens which is you know I read all the tributes including yours and it’s hard to reconcile the language of maverick and loner and a guy who trusts his own judgment and is willing to go it alone with all the ways that he was in a profound sense and institutionalist you know a creature of his family his schools the law firm he worked at later comes onto the bench I mean this is not a person who comes across as iconoclastic and I would venture to guess one of the reasons his confirmation goes so easily is that he is such a creature of the institutions that make the Senate and the courts very comfortable. Kate can you help me understand how somebody who’s always characterized as a loner and a maverick is also very very very much a creature of great deference to the institutions that surrounded him and brought him up.
S10: It’s really a statement about our times I think that we tend to associate being a kind of eccentric loner with not being predictable in a partisan or ideological sense. Right. So I think a lot of what he was very easily confirmed in 1975 and about three weeks five minutes of argument before a 61 seat Democratic majority in the Senate even though he was the Republican nominee in part because he wasn’t really someone who could be relied on as a as a partisan vote here as I mentioned before it wasn’t a government lawyer right he was an antitrust lawyer growing up and on the southern circuit which is the court of appeals where he sat before he was on the Supreme Court he kind of developed a reputation as someone who just kind of exercised his judgment and as you say Dahlia is he. He wasn’t an iconoclast right. So he wasn’t some kind of of of long haired hippie or something. And so when people call him a maverick what they really mean to be saying when they say that is that you know you couldn’t just sort of say he’s in this column or that column and that’s where he’s going to go. You couldn’t rely on his vote which doesn’t mean you couldn’t rely on him as being someone who can be trusted as an institutionalist or was going to exercise his judgment it meant the opposite of that which is he’s just going to go with his gut and his and his brain and not and not really based on a label that you can attach to the case or to the litigants Sunny and thoughts on on the same question.
S15: I completely agree. I mean when I think about justice Stevens I often really think about the very deep sense I think he had of duty of duty to his country and to the Constitution and to other people. And so I think what he learned from his past as you talked about the sort of institutionalist past and his time at the military you know was that you know he had this duty that he needed to fulfill and when he was a judge that duty was to say what he believed and believe me there there’s no doubt he he definitely preferred it when other people saw things the same way he did and agreed with him. But you know if if they didn’t then he felt like it was his job and his duty to you know do the courageous thing and say it alone. So I think he he was a maverick in that he felt it was his job to you know say how a case is supposed to come out and to stand alone if that’s what was required.
S8: So I’m hearing two of you say something interesting you know Jamal you just said and you wrote it in your times piece this is a guy who’s confirmed 98 0 just in a heartbeat in part because nobody knows quite what he is. And Sonia you’re kind of saying the same thing which is at the time nobody knows quite what he is because he’s just doesn’t fit into any coherent predictable ideological box. And I wonder if and you flick at this in your times piece Jamal but that those days are over right. Those days are not regardless of what we can call the Senate polarized or we can say it’s dysfunctional.
S9: But the idea of a nominee that you don’t know who they are that’s gone totally gone.
S11: I think part of it with him was just the particular politics of his appointment. It was right before a presidential election and Gerald Ford was a pretty weak President and was trying to not make too much of a splash with a Supreme Court appointment. But part of it really is just the times in which we live. I mean there were several other unanimous and pretty easy nominations after his Justice O’Connor only got one no vote and that was from a Republican. And Justice Scalia was unanimously confirmed so he is a throwback in so many ways. But I think you know when you put that together with his personality with the bow tie as you mentioned and with his manner on the page it may have seemed as though he lined up with a lot of so-called liberal outcomes.
S16: But in conversation you know you really could not detect even in close contact with him much of a partisan bone in his body. I couldn’t even tell you who he voted for. Like I have some guesses Sonia.
S13: The question of manner is the one that I come back to most often when I think about Justice Stevens and I think that the hallmark characteristic that always comes up is this idea of humility that in an era toward the end of his career of the rock star justice you know who’s on FOX and on CNN and is hocking a book and he’s always got a kind of brand that they’re putting out there. Justice Stevens to the extent he had any brand at all it was modesty I think and perhaps most famously and we’ve talked about this before but everybody remarked on his tendency to ask questions at oral argument with this famous. May I ask a question that. Let’s listen for one little second to this is how after ten years of covering Justice Stevens on the court. This is what I most often heard he would open with me I have a letter here.
S3: May I ask you what might be an awfully elementary and stupid question.
S17: CORNISH You are saying is this a trend the just just to go to please. It’s really critical to me to understand this the effect of the judgment. And you said there six reasons why it’s not an ordinary judgment. I really would like to hear what those reasons are without interruption from all of my colleagues. I would be happy to provide those Justice Stevens.
S8: Walk me through and we’ll start with you Maybe saying it this complicated humility only because this is simultaneously a person who wrote his own first draft with I think his clerk certain jokingly referred to as the most underutilized clerks because he did so much of his own work. So he he was both very very modest but then he didn’t again participate in the cert pool so again helped me square the circle here please.
S18: I think humility is a really good word to describe Justice Stevens because he definitely was someone who just did not stand on ceremony. In fact when we were in D.C. or his funeral you know a number of clerks or were remarking on just how much he would have hated all that for us. You know just being the center whenever people talking. It was it was just not where he wanted to be and he was well known to have spent a lot of his time in Florida where he was you know just John to a lot of people’s sort of a friendly neighbor who was at the bridge club and he would never bother to correct anybody or you know let them know what his day job was. So it really was something that was very true to his personality not just on the bench but in all aspects of his life. But I think you know the practices you mentioned do demonstrate his humility. He he wrote his own first drafts because he believed that was the best way to make sure he was reaching the correct outcome. He cared in particular about the facts of the case. He wanted to really rappel the fact with the facts he wanted to understand the facts and you know make sure he fully understood the record in the case and he felt like the best way to do that was to dig in himself and to write out that part of the opinion. And he he was even known from time to time that he would go into his office to work on his draft and he would emerge having you know declaring that he had changed his take in the case and possibly even his vote because you know having gone through that process you know opened his eyes to something new about the case. But I think as you know former law clerk one of the ways you saw his humility the most was how when he interacted with us he just really conveyed to us that he felt like he could learn from us as much as you know we could learn from him which was just ridiculous but I’m very much in evidence.
S19: I think again of his humility I think Kate Shaw had a really nice quote in one of the tribute pieces where she said that that it was simultaneously terrifying and also unbelievably fortifying for a little kid law clerk essentially to be told OK it’s on you and that he really did trust his clerks immensely. Jamal I wonder if I just mentioned the cert pool and didn’t explain what it was. So maybe explain for a minute what the cert pool is and then what it meant that Justice Stevens opted out.
S10: Sure. The cert pool is a way for the justices to divide the petitions or the applications for cases to be heard. When I was clerking it was about eight thousand per year I think it’s roughly the same today. And so it’s very hard for any individual justice to to review all those petitions so of course the clerks help out. But a practice developed really over the last several decades where all of the clerks who participated in this thing called the cert pool would get on a wheel and just kind of divide the 8000 petitions among themselves and they would each write a memo that would be circulated to all the other justices chambers talking about whether the facts of the case and whether the case should be granted or not.
S11: And it was recommendation and each individual chambers could then make their own decisions based on what the pool memo said. But they were not the first point of contact. And so Justice Stevens and not being part of the pool was saying you know I don’t want some other justices clerks to be the ones to summarize cert petition for me. I want that to happen in chambers. And in fact when it did happen in chambers he didn’t really want his own clerks to summarize the petitions either. He just wanted us to kind of flag ones that he should read on himself. And that really does I think speak to the humility that we were talking about before which is in any number of practices including writing his own opinions for the first draft and including not being in the cert pool including not getting you know elaborate memos from his clerks I’m summarizing the cases the court was going to hear. He wanted to make sure that he was arriving at decisions through his own mental process and not being influenced by other people recognizing that that really can change your mind if someone else is you know takes the first whack at something. It influences you. And he wanted to make sure that the decision making was by the person who was confirmed by the Senate and appointed by the president and not by clerks.
S19: You’re both checking me on this humility thing that I’m saying and I love that you’re both saying no it is actually the consummate act of humility to say I actually have to make up my own mind if the opposite of what I’m thinking of in terms of very controlling or you know that that I can’t be a part of a larger cert pool you’re both saying actually this is very emblematic of somebody who really felt as though humility requires him to do the work.
S16: I would say so I I’m hesitating a little bit because he was not a person who lacked self-confidence. Right. He was when he reached a decision he was he was very often quite sure he was right but that was because he had taken the time to go through the facts to think it through to get a first impression that wasn’t generated by someone else. Right and so he was confident in his process but he wasn’t you know he didn’t think that he was better than other people.
S8: Jamal I had asked you for a favorite moment from oral argument and you came up with this kind of obscure exchange from Barnard versus Thorson. This is argued in January of 1989. Here’s Justice O’Connor chiding a lawyer for calling justices.
S20: Judge we don’t think that it would work. Judge for. Several reasons. First I think we’re generally called Justice I’m. I. What. Keep listening because here’s Justice Stevens response is that it might be alleviated if we had more lawyers who were actually there Judge Justice excuse me Justice Stevens but it cannot you’re mistaken timey judges also made in Article 3 of the Constitution by the way.
S8: So. So tell me why. Well what why is this one that you’ve pulled for us as something that was representative of something uniquely Stevens ish.
S11: Well I think it’s a couple of things about that clip. One is that he’s right and that the Constitution doesn’t say justice does a judge when it talks about the Supreme Court. But it’s also that he was kind of simultaneously accomplishing a couple of things he was trying to set the advocate at ease who was clearly nervous and and rattled by having been rebuked by Justice O’Connor and saying really don’t worry about it. But also it was it really was a kind of chiding of Justice O’Connor as well. But in the most gentle kind of joking way possible and recognizing that it’s hard to do that directly he really had a lot of what you might call emotional intelligence I think you can read a room pretty well. And and there are other examples of this and there’s one in his obituary by Linda Greenhouse in The Times where he she mentions this anecdote where there’s some of some function the justices are having and one of the female clerks has been asked to hand out drinks or something and he takes over for her and says and says I think it’s my turn now. And I think that’s just another example of ways in which as you say he didn’t like anyone kind of being talked down to. And but he was also very socially aware in a way that not everyone you know not everyone has that set of skills.
S8: Sonia thoughts on that I know that you also have lots of stories about Justice Stevens just being like freakishly sensitive to kind of dynamics in a way that I think so many of the justices sometimes don’t necessarily hone in on the most vulnerable person in the room. But he he did have kind of an uncanny way of doing that right.
S15: You know he did and I love that clip that you played because it’s it is it’s like all of it together like you know it’s kind. It’s funny and it’s super smart right.
S18: All all in one just quick exchange and that is just so much about him. But he did it it was another way where I think he was a surprise to people use all this sort of you know reserved Midwesterner who you know it was the opposite of sort of touchy feely you know hippie or whatever of the generation maybe that came after him. And yet you know when it mattered when it mattered to having this ability to figure out you know the power imbalance or who needed you needed a lift or who needed you know the kind word at the right time. He was really amazing in that way.
S8: Jamal I want to talk about doctrine a little bit and I want to start with the death penalty because it seems to me of a piece with a couple of the places where it’s not clear to me whether Stevens changes or the world changes but he comes on to the Court in 1976. Immediately is part of a bloc that votes to reinstate capital punishment after there had been a four year moratorium. And he writes you know with the right procedures we’re going to be able to ensure quote evenhanded rational consistent imposition of death sentences under law. So he’s bullish on reinstating the death penalty. And then he really retreats from that in 2008 two years before he retires he announced in a concurrence that Yikes. He now believes the death penalty is unconstitutional. He amplifies that view after he steps down with an essay in The New York Review of Books. So I guess my question for you is is this one of those areas in which his views changed or did the death penalty change or did his understanding of the death penalty change. I feel like it’s reflective of this core question we have about how this essentially centrist Republican becomes a flaming liberal.
S10: Well I think it’s a little bit of both. He does change I think in a number of ways during his time on the court and the court of course moves very very strongly to the right during his time there as well. On the death penalty itself you know I think this is a really good example of what he once called learning on the job right where he takes over in 1976 the case you referred to a case called Greg vs. Georgia where he is part of a bloc that reinstates the death penalty on the ground that there is some way of administering this practice in a clear and rational way. And then he’s he’s on the Supreme Court for 30 years where he’s getting not just lots of applications for people to stay there deaf senators react to really think carefully about the case not just lots and lots of actual death cases if the court is hearing on the merits but also this practice of not being part of the cert pool where someone in his chambers is looking at a petition after petition after petition after petition very carefully and overvote over those three decades. He developed a view that this practice actually couldn’t be administered in a fair and rational way. So I don’t know if you quite call that changing one’s mind or rather just updating your views based on facts that are available to you and more available to him as a Supreme Court justice and they might be to the average person. So
S19: that’s super interesting Jamal. I’m hearing you say I hadn’t thought of it before. But part of removing himself from the cert pool is that he’s just exposed to this immense number of capital appeals that maybe some of the other justices are just not seeing and that has to inform the way he comes to think about it.
S11: Yeah I mean I’d say in fairness that capital cases are ones where the other justices are quite likely to pay some attention. But a huge number of cert petitions are prisoners who have some issue and almost always there’s nothing the court can really do about it. But you really do get a sense of how much injustice there is in the world even if it’s something you can’t do something about having a sense that people are not just sort of making things up but that it’s an unfair world. And if you have a chance to make it more fair that maybe you should be a little bit more likely to step in and do something about it.
S8: Sunny I want to ask you again this core question maybe a different way. Justice Stevens insisted right up until the end that he had never moved that the court essentially talked around him. And you know Jamal has made this point he. He’s actually a pretty conservative guy who is trying to do justice case by case but ideologically he really did not think of himself as a liberal and he told The New York Times in 2007 quote I don’t think of myself as a liberal at all. I’m pretty darn conservative. And so again maybe through the lens of the death penalty or not. Help us understand how he thought of himself when he really was by the end of his time on the court without a doubt the leader of the court’s liberal wing.
S21: Well I think you know he’s making an important point. I mean he’s completely right in an extent that is Jamal already said that the court shifted dramatically to the right during his time on the bench I mean he might have moved a little bit left to you. But mostly you just have this court just shifting you know everybody moving in several seats down right to the right. He joined he joined a court that had true liberal lions on it like Brennan and Marshall. And today you know the center of our Supreme Court is Chief Justice Roberts who is a very very conservative justice. So it’s really just undeniable to sort of show that change and I think he’s correct to bring some attention to it. But I agree with Jamal as well that I think he is conservative. You know in some of his substantive issues we really talk about sort of indecency and protecting the flag or were decisions that were quite conservative that he maintained until the end. He never reversed on in any way but also just sort of in in other ways in terms of how he approached the law that he had this deep respect for precedent and for facts and for history and for the role of judges in the bigger structure of the government that you know is conservative and it’s in its own sort of small see way. But you know I think to me the fact that he just continued doing his thing and doing his work and deciding the cases and saying what he thought even if no one would join with him even if people were at the time accusing him of you know changing sides or changing teams and moving this way or that way and he just kept doing what he does is really just the best example of how he’s just the exact opposite of of a partisan just along those lines.
S16: I suspect Sonia had many similar experiences when she was working for Justice Stevens but he had this remarkable ability to have complete faith in his colleagues on the court. I mean when we talk about being a throwback to a different era he was not at least openly suspicious of his colleagues or thinking that they themselves were ideologues even though all the rest of us did and all his clerks did you know he would come back from conference and there’d be some controversial case and he’d be on the losing side or in dissent and he’d say You know I bet when I circulate my opinion I thought maybe Nina will come around you know. And you know that’s it seems completely bonkers to people outside of the building but it was really just his fundamental kind of humanity and his belief in humanity that never really went away. And it might feel a little bit naïve at this stage of our collective life but it really made him I think you know you’re probably sensing the adoration that his clerks have for him and people who know him had for him comes from.
S22: He’s just he was just a fundamentally decent person who who trusted other people and I love that as a Segway because I think one of the things that I read in several obituaries was that Darren if he didn’t take his opinions right to Nino Scalia and say you roughed this up right.
S14: I mean he he was very happy to be challenged. He was very happy to. I mean this is something that Justice Ginsburg always said about Justice Scalia is that he made her a better writer. He made her a better thinker and you know yes he sometimes talked smack and Mr. you know belittled her but that in the end of the day that given take really really was something that Justice Stevens valued and I think can remember where I read that you know even during Bush v. Gore when tempers were really high and clerks would be taking umbrage because Justice Scalia would be poking at Justice Stevens. He just laughed it off. I mean this was really whether it’s civility or comedy or some notion that it’s all just for show at the end of the day we’re friends. He really was all in on that as a virtue of justices right.
S16: I think it was all about something that Sonia talked about earlier all about his job as a justice. Right. Which is to come to a judgment. Bounce ideas off each other and figure out what the right answer is. If you disagree at the end of the day publish your dissent or your concurring opinion and read up for the next for the next case and he never really abandoned that even as it appeared that the world was becoming really partisan around him that his job was still to be one of nine people each of whom he had a team to have a tremendous amount of respect for.
S23: Thoughts on that when the year I was clerking anyway the two other justices that we saw in our chambers the most were Justice Scalia and Justice Thomas. You know Justice Scalia I think who often had marched down to you know engage in one of his you know one of their sparring debates that they love to have about the law just the same way he in Justice Stevens might march down to Nino’s office as he would say and Justice Thomas and his chambers at the time you know I was there were right next door to ours. He would be by. Just to talk usually about sports with Justice Stevens. They were really the only two sports fans that would stand around for the longest time talking about football talking about baseball.
S15: Laughing You know I just have so many memories of just you know Justice Thomas and he is just this hugely booming guttural laugh.
S24: It’s just a wonderful wonderful laugh. And then you’d hear Justice Stevens who’s really much more of a tickler. I’d say he would chuckle and the two of them would just be having a great time. So you know absolutely the idea that disagreements which were deep and heartfelt did not stop him from connecting in this human way with all of his colleagues and I think with all sorts of people he encountered in his life.
S14: Jamal I want to talk about guns for a minute because it does seem like an area in which even after he comes off the bench having famously dissented in Heller which is you know the case where the Second Amendment suddenly has new force towards the end of his life he’s writing really radical things like let’s repeal the Second Amendment outright. You know he’s really going completely rogue on the guns issue. And I wonder if you have some theory for why guns becomes one of the issues long after he leaves the court that he’s still almost fanatical about the idea that the court’s gotten it wrong.
S11: You know I think that Justice Stevens would probably say that the rest of the country was going rogue and that he was being completely normal. I think it reflects something about the way he thought about judging which is very case by case which is very much let’s figure out what makes the most sense here let’s figure out what are the constitutional values at stake here and and then those might point in different directions in any individual case. And so you know the idea that there is some amendment to the Constitution that gives you a kind of unqualified right to to own dangerous weapons was really I think quite anathema to him as someone maybe as some partly as someone who grew up in in kind of gangland Chicago with his father as a hotel owner but also just as someone who believed more than anything else in common sense. And so I think he associated the Second Amendment with a particular kind of constitutional fanaticism that was against everything he believed in. We talked about the First Amendment earlier and how you can make some judgments about when when the First Amendment is needs to be to kick in and when it doesn’t and he felt very much the same way about the Second Amendment. And I think just thought that it was kind of the avatar for for a kind of ideological constitutionalism run amok.
S8: And Sunny maybe another good example of what we’re describing is humility or at least his willingness to say I made a mistake. Another one of these issues I think Jamal’s identified the country moves around him and he has to flag it for us. But maybe the best example of him saying I think I might have been wrong is this 2008 case where he writes the lead opinion in a case upholding the constitutionality of Indiana’s brand new voter I.D. law and justice Souter in dissent says there’s just no evidence of the kind of voter fraud that Indiana is trying to curb. And in the meantime you are suppressing the vote. Justice Stevens is sanguine about this and then suddenly in 2013 he tells The Wall Street Journal maybe he was wrong and maybe Justice Souter was right and that woops sorry about opening the door to vote suppression is this another one of those examples of sort of voter I.D. goes on to become. Well the thing it is today one of the most democracy suppressing enterprises that he blessed and he regretted it.
S18: I think he would he definitely regretted how that case was used and what it was said to have stood for you know his actual opinion in that case is actually another great example of this sort of judicial humility that we talked about before because he in that case dug into the record which you know apparently sort of the record that they were given based on the findings of the lower court judges you know didn’t quite include all the evidence that he felt would be needed to meet the standard and that so he looked very closely at the evidence he looked very close like the writer in the vaccine thought very seriously about the standard he thought he was supposed to apply and he just felt like even though he had said that he didn’t like these laws personally he didn’t support them as a sort of policy matter.
S24: He felt on the law that he had to rule a certain way. So that was that same approach there that he was exercising. But you’re right. He looked back on that later and he saw how it was used. He saw that future courts didn’t necessarily read all his nuance that he you know he tried to rely on and realized you know Justice Souter was correct in that they needed to look at this more broadly and look at it you know the full picture in the full history there.
S15: So yeah I mean he was and he was always willing to admit errors.
S24: And that’s because he was always open to reflection and to listening and to rethinking and to being convinced until you were always free to try to convince him that he was wrong whether you were Justice Scalia or a twenty three year old law clerk and you would have an ear you would you would get his attention his full attention and then he would you know decide whether you were right and if he concluded that he had made a mistake he would he would admit it.
S19: It feels like one of the things that Justice Stevens started warning us about particularly and maybe these two famous dissents one in Bush v. Gore and one in Citizens United in 2010 is that the nation is going to lose confidence in the judiciary. And I’m just going to read a tiny bit of both of these are landmark dissents. But here’s here’s the dissent in Bush v. Gore in 2000 the majority opinion can only lend credence to the most cynical appraisal of the work of judges throughout the land. It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. Time will one day heal the wound to that confidence that will be inflicted by today’s decision. One thing however is certain 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. Here is his dissent in Citizens United in 2010 essentially five judges were unhappy with the limited nature of the case before us city changed the case to give themselves an opportunity to change the law. He was starting to send up a flare Jamal about partisan judges the appearance of bias the appearance that judges were in the tank for outcomes long before it was cool to send up a flare and I wonder if you have any kind of great unifying theory of Justice Stevens sense that the court was becoming broken and that the court was performing a kind of deep partisan rift that was losing the confidence of the electorate long before the rest of us saw it.
S16: Well I do think he. I do think he had that impression at least as to those cases whether it was before the rest of us. I’m not sure it was unusual for justices to make those kinds of statements and I think it was unusual for him to make those kinds of statements so he really just did that in cases that he thought were especially egregious and I think Bush versus Gore. I think he had a very clear view that the court was reaching out and reaching out and very directly in partisan ways and Citizens United I think is another one of these examples of how the court not being able to take cases on their facts to be balanced about cases to be balanced about the First Amendment and really taking out of the political process a law that was designed to address certain flaws in that process and so I think he he called it like you saw it and those were cases that in his view were especially egregious. I think his dissenting opinion in the Heller gun case is another one that’s another example of that and one of his last sort of big opinions which is his dissenting opinion in a follow up to the Heller case which was a case about the degree to which the Second Amendment would apply to state and local governments. That’s really another one of his landmark opinions where he really is trying to to leave as his legacy a view that judges should be exercising their judgment rather than being ideological not just partisan but being ideological and not being able to move in response to context.
S22: I love that because that’s where we started. I mean in a sense we’ve come full circle in terms of he really felt that at bottom judges should judge and when they strayed from that when he strayed from that that was problematic. But I think it’s such a it is kind of well done on these spontaneous Unified Theory it explain a lot and I think it leads me inexorably to the question I have for the both of you which is having very clearly being non ideological and nonpartisan and held himself out as somebody who didn’t take partisan sides. How do we square that with his decision in last year to take sides in the Brett Kavanaugh confirmation it was so unlike him in some sense and also very like him in some sense after then judge cabinet testified and said things that suggested he could not be perfectly neutral. It was Justice Stevens who surprised all of us by coming out and saying maybe this is not a person who should be on the Supreme Court. And I wonder again if this is aberrational or if this is Stevens very much taking the position Jamal that you just took which is judges should judge. And this is somebody who now seems as though he can’t be fair. Sunny you want to take a crack at that incredibly compound question.
S23: Yeah. I mean I agree completely with everything that Jamal said. You know I think you can even look back at how Justice Stevens was an antitrust lawyer and that you know he was perfectly fine for the court to have these debates and to have these opinions that he may or may not be on the winning side of as long as that competition was fair. You know as long as people were acting honestly and playing by the rules and then you could trust the outcome. But I think you know some of those sense that you read he is frustrated because he doesn’t feel like that’s what’s happening. It doesn’t feel like what the majority is doing. And he is concerned that he’s not the only one who’s seen that but that the public itself is going to be not sensing you know sort of fair play so to speak on the court in terms of the opinions and therefore that they could trust the outcome. So when you got to justice Kavanaugh I think he saw a lot of those same concerns and a lot of concerns that we aren’t going to have a process here that we could trust and that this is not how a judge is supposed to act. And I think he also the fact that he was one of the only you know if only three living retired justices at the time that he was in a very unique spot and in terms of being able to speak out that the current justices were confined and that they wouldn’t be able to talk about their views on this. But anybody else has never been a Supreme Court justice and doesn’t really know the job or know what it’s like to sit in that chair and where those where the robe. But he does. And so I think he felt that he was one of the few people who was free to be able to come out and say that this is important. And what I heard in those hearings is not appropriate. It is an important attribute and to have this sense of fairness and demeanor and what he showed me you know made me think that he doesn’t it doesn’t have the right characteristics.
S19: I just want to read the quotes so that we’re clear what he didn’t didn’t say. He said that cabinet the way he’d behaved during his confirmation hearings suggest quote that he has demonstrated a potential bias involving enough potential litigants before the court that he would not be able to perform his full responsibilities so he was not taking a chip shot at Kavanaugh. He was saying he had displayed and in the bill of a D to be fair in front of certain litigants. But I guess Jamal I want to ask you the same question maybe a different way which is simply to say just in the past week we’ve had Ruth Bader Ginsburg making speeches about how much she admires and likes Justice Kavanaugh. We’ve had Sonia Sotomayor explicitly saying at events in the last week or two we’ve turned the page. What’s past is past world good. There’s one story you can tell in which being judicial means we just say this is fine. And then there’s another story the one that I think Sonia just told which says that sometimes you have to be a little bit injudicious in order to be judicial. And I’m just wondering why Justice Stevens at the very very end of a very long career in which he’s so careful is willing to say I think that the appearance of bias here will hurt the court because that’s what he’s saying.
S11: I don’t want to speak for Justice Stevens at all and I’m sure he had his own thought process that he went through and figuring out exactly how much to say in that circumstance. But it really was quite an extraordinary moment for the country and an extraordinary confirmation hearing. Just to think back to that time he made his comments not after Justice Cavanaugh’s initial hearing but after the second round when he came back and was sort of yelling at senators and claiming a conspiracy by the Clintons and other other sorts of things and I don’t bring that up to disparage Justice Kavanaugh who from all I know seems to be a perfectly nice person to get along with. But what was on this way at that moment was I think genuinely shocking. And as Sonia said not everyone with his stature has the ability to call that out. And I can only guess that he thought that it was his responsibility to say that what he was seeing was not normal. What we were seeing was not was not normal. And again I think that’s consistent with his reaction to Bush v. Gore as well.
S8: I think one of the last lingering questions I have is we all know he famously retired in part because of the way he read his dissent in Citizens United and he was stumbling over words I was in the chamber at the time I think we were all trying to figure out what was going on. Later he said he was actually suffering from a mini stroke. So question for you Sonia. Do you think that he regretted leaving the court when he did.
S24: I don’t think he does. You know he but he was aware of the problem of being an aging justice and knowing when it was time to leave because it’s not a position where there’s you know it’s really easy to be able to get sort of an honest trustworthy opinion from others about whether you are still doing your job at the level that you should be doing it. And so he has said that he actually had an agreement with Justice Souter that Justice Souter would tell Justice Stevens when he thought it was time to go because they were very close friends. But the problem with that plan was then Justice Souter goes and retires first. And so he’s not there anymore to tell Justice Stevens and so he has said that you know then when he did have the issue that became public with the Citizens United dissent reading that he decided it was time to retire. But I don’t think he regretted it. I mean he had he had a 40 year judicial career if you include his time on the seven Circuit Court of Appeals and he was 90 years old and as I said before to I think being retired you know it gave him this freedom that he hadn’t had before. Unlike unlike other justices he didn’t write books when he was on the bench she didn’t give a lot of interviews. But once he left the bench he was you know much more free to be able to do that to talk about what he wants to talk about to write about the law in New ways. And I think it seemed that he really enjoyed that period of his life. And I’m well I missed him being on the bench. I’m really glad that he had that time.
S19: Last question for the both of you. At his funeral you were both in attendance. Justice Kagan. She’s the one who inherited his seat. Spoke to all the clerks the Stevens clerks and said to them this is essentially what you learned from Justice Stevens what I learned from him. And she said this he learned how to lead a good and honorable life. You learned about treating people with dignity with courtesy with respect and with kindness. He learned about the importance of putting all your legal talents and gifts towards serving others. And I think I want to ask and we can start with you Jamal. It feels like another one of those anachronistic values right. This is a lovely value from somebody who lived in a different time who judged in a different time who served in the military in a different time. How does that land with you in a moment. You know as you’ve said where the whole country seems to have gone rogue not just on guns but on a lot of these values. How do you repurpose that call and that task in a time where kindness and courtesy and respect feels like it’s not a part of what certainly what any of us does but what jurists do anymore.
S16: Well I think I’d say a couple of things. One is that as we’ve talked about you know he wasn’t someone who was unable to call out when he was not seeing kindness and respect and civility and good faith. And he picked his spots for doing so but being a humble person and being a respectful person doesn’t mean that you have to put on blinders to what’s around you at the same time. He was a really generous person. I think that’s the word I would use which is to say he he you always had a shot right to show him that you were an honorable person. He he didn’t he wasn’t a bigoted or biased towards people at least not that I could tell. And one thing about his chambers in general it was it was a very horizontal relationship. I mean we obviously all knew who the boss was. But the way he would talk about cases you know you’d sit down he’d sit down in a chair you’d sit down next to him and he’d you would just chat about it. It wasn’t like you gave him a document and he was reviewing your work. Right it was. You were just talking like two people who were learned in the law. One of those people was much much much more learned but he didn’t he didn’t act that way and I think that does show you as you move on in life and are in a kind of hierarchical relationship with other people how to treat those kinds of relationships. So I learned a tremendous amount from him. And I think the country could as well Sonia same question How do you repurpose.
S22: These lifelong values about kindness and empathy and humility in an era where it just feels as though it is not a part of certainly the judicial project and maybe the legal project as well.
S18: Yeah I’ve been reflecting on that a lot. You know ever since he died and and because in part because I think sometimes it’s been hard to explain to people how you know I spent a year you know in this man’s employ and how it could have such a profound effect on me but I think it’s exactly for these reasons we’re talking about just how he modeled this way of interacting with people of thinking about the world of having faith you know that he had you know in US and in everyone he met that you know you had these abilities and you had this worth. And it’s so empowering and and so well I I myself you know really sad to be going forward in a world without Justice Stevens I just kept finding myself thinking that he would just have the utter confidence in all of us that we are mostly all good right. Like profoundly good and humanity and that we are up to these challenges and we are up to the task of finding our way forward. But he knows that we can do this and he would not be hesitant about that at all.
S19: Sonny West is Otis Brumby Distinguished Professor of First Amendment law at the University Of Georgia School of Law where she focuses on issues involving the First Amendment and the Supreme Court. Her research appears in top legal journals including the Harvard Law Review UCLA Law Review and California Law Review and she clerked for Justice Stevens in the 1999 2000 term. Jamal Greene is the Dwight. Professor of Law at Columbia Law School his scholarship focuses on the structure of legal and constitutional argument. He’s the author of more than 30 law review articles is a frequent meaning a commentator on the Supreme Court and Constitutional Law and served as law clerk to John Paul Stevens in the 2006 2007 term to the both of you I cannot thank you enough for helping all of us understand someone who I know was really a formative influence on the three of us. Thank you for being here. Thank you. Thank you darling.
S25: And that is a wrap for this episode of Amicus. Thank you so much for listening. If you would like to get in touch. Our email is Amicus athlete dot com and you can find us at Facebook dot com slash anarchist podcast. Today’s show was produced by Sara Bernie. Gabriel Roth is editorial director of Slate podcast and June Thomas is senior managing producer of Slate podcast.
S26: We will be back with another episode of emphasis in two short week.