Stanford Law Faculty Remember Justice Stevens

Retired U.S. Supreme Court Justice John Paul Stevens died on July 16, 2019 at the age of 99. Appointed by Republican President Gerald Ford in 1975 and unanimously confirmed by the Senate, he served on the Court for more than 34 years. Here, Stanford Law School faculty members remember his legal legacy.

John Donohue on the Legacy of Justice Stevens, in Sharp Contrast to Justice Scalia

Justice John Paul Stevens, who died this week, came to be defined in part by his sharply contrasting antagonist Antonin Scalia, the previous Supreme Court Justice to die (in February 2016). While Stevens and Scalia, both life-long Republicans appointed by Republican Presidents, shared many similarities, they came to reflect entirely different conceptions of what a justice should be. Stevens was lawyerly in his preparation and meticulous in his attention to detail and facts; Scalia was lawyerly in that he was a fierce advocate for the positions he championed, but facts and details were simply inconvenient impediments to be bull-dozed out of his way. Two areas of contention where Scalia prevailed over Stevens — the death penalty and the Second Amendment – will in the fullness of time likely vindicate Stevens’ superiority as a judge guided by truth, scholarship, wisdom, and craft rather than ideology.

John J. Donohue III
Stanford Law Professor John J. Donohue III

In 2008 in Baze v. Rees, Justice Stevens carefully noted that “there remains no reliable statistical evidence that capital punishment in fact deters potential offenders.” Justice Scalia replied by saying that Justice Stevens’ conclusions “are not supported by the available data.” Of course, Stevens was correct and Justice Scalia supported his assertion with a cite to a single article by Cass Sunstein and Adrian Vermeule that was not an empirical evaluation of the deterrent effect of the death penalty, but rather a philosophical discussion of what would be appropriate policy if the death penalty did deter. Sunstein soon corrected Justice Scalia’s mis-citation, writing that “the best reading of the accumulated data is that they do not establish a deterrent effect of the death penalty.”

But ideologues are rarely discouraged by evidence that contradicts their beliefs. In 2015 in Glossip v. Gross, recidivist Scalia was at it again, re-citing the original Sunstein and Vermeule article as one of the “statistical studies” that supported the deterrent effect of the death penalty – despite their being strongly criticized in a unanimous 2012 report of the National Research Council. Stevens never allowed himself to stray so recklessly from credible authority; Scalia never allowed his pursuit of a pre-determined outcome to be constrained by credible authority.

Ironically, it was the 2008 judicial battle in Heller v. District of Columbia that showed that while Scalia could defeat Stevens with 5 votes from a rightward-drifting court, it was Stevens who prevailed as an expositor of the Constitution, whether from an originalist or more pragmatic perspective. As “textualist” Scalia blithely ignored the language of the Second Amendment referring to a “well-regulated militia,” Stevens showed how the text, history, and tradition of gun regulation all cut against Scalia’s bizarre view that while the founding fathers would permit bans on weapons of war they would not tolerate restrictions on weapons preferred by criminals. As Justice Stevens thundered in response: “The Court would have us believe that over 200 years ago, the Framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons. Absent compelling evidence that is nowhere to be found in the Court’s opinion, I could not possibly conclude that the Framers made such a choice.”

Justice Stevens was a man of unusual grace and wisdom, who continued to grow as a thinker and retain a trenchant mind beyond the time of his resignation from the Court in 2010 at age 90 until his death at age 99. Republican appointees looking for good judicial role models would do well to look past a justice like Scalia who often adopted the “specious mask of zeal for the rights of the people” that the founders warned of in Federalist Number 1 to a justice like Stevens who embodied the attributes of fidelity to truth, craft, justice, and wisdom that the founders would truly have valued.

John J. Donohue III has been one of the leading empirical researchers in the legal academy over the past 25 years. Professor Donohue is an economist as well as a lawyer and is well known for using empirical analysis to determine the impact of law and public policy in a wide range of areas, including civil rights and antidiscrimination law, employment discrimination, crime and criminal justice, and school funding.

Jeff Fisher on Justice Stevens: Setting an Example for All of Us

Much has been said in the past couple of days about Justice Stevens’ kindness, humility and generosity of spirit.  All of it is true.

But perhaps not quite enough has yet been said about the justice’s integrity. Selecting a nominee in the wake of the Watergate scandal, President Gerald Ford was said to be guided by a single objective: to find the “finest legal mind” available. But the need to select a jurist who was above reproach must surely have been foremost in his thinking as well.The president found that person in Justice Stevens. Never afraid to speak his mind or stand his ground—though never showy about doing so—the justice seemed to prize his independence of thought above all else. He simply endeavored to figure out the best solution to the problem each case posed, period. If he came up with an elegant resolution others had missed, all the better. He would report his discernment to the clerks with a glint in his eye … and then write it up himself. But the idea he might be swayed by some improper influence, or even fail to give due weight to a counterargument, was laughable.

Fisher v. Fisher: A Faculty Debate on the Confrontation Clause
Stanford Law Professor Jeff Fisher

I think this resolute commitment to searching and evenhanded decision-making was at least partly what has always inspired such fierce admiration among his law clerks. It was taken as a given in chambers that none of us could ever hope to live up to the justice’s example. But we could try, when we engaged with the law, to emulate his model—or at least hope we absorbed as much of his aura as possible. What seemed merely second-nature to him has always been a gleaming ideal for all of us.

This remembrance first appeared in SCOTUSblog on July 18, 2019.

Jeffrey L. Fisher is a professor of law at Stanford Law School and co-director of the Supreme Court Litigation Clinic. He served as a law clerk to Justice John Paul Stevens in 1998-99.

Pam Karlan Remembers Justice Stevens

The voters I have spent much of my career representing before the Supreme Court, owe a special debt of gratitude to Justice Stevens. He wrote the opinion for the Court in the first case I argued, Chisom v. Roemer, 501 U.S. 380 (1991), where the Court held that section 2 of the Voting Rights Act covers judicial elections. And he announced the judgment of the Court in the second case I argued, Morse v. Republican Party of Virginia, 517 U.S. 186 (1996), where the Court held that the Act covered the Republican Party’s nominating process. He long ago recognized the problems with political gerrymandering, political patronage, and campaign finance.

Pamela S. Karlan and the Law of Democracy
Stanford Law Professor Pam Karlan

I loved watching the Justice at oral argument. He was a great questioner. My favorite, because it indicated so much about how his mind worked, was a question he often asked in statutory cases. Here’s the version he asked opposing counsel the final time I got to argue before him, in Dolan v. United States: “Let me ask you this question: If we conclude there is a hole in the statute that Congress has to amend, is it more likely that Congress will cure the statute if we rule for you or if we rule against you?” That question captures so much of Justice Stevens—the courtesy, the sophistication, and the concern with the real-world consequences of the Court’s rulings.

Pamela S. Karlan is the Kenneth and Harle Montgomery Professor of Public Interest Law and Co-Director of the Supreme Court Litigation Clinic at Stanford Law School. One of the nation’s leading experts on voting and the political process, she has served as a commissioner on the California Fair Political Practices Commission, an assistant counsel and cooperating attorney for the NAACP Legal Defense Fund, and a Deputy Assistant Attorney General in the Civil Rights Division of the U.S. Department of Justice (where she received the Attorney General’s Award for Exceptional Service – the department’s highest award for employee performance – as part of the team responsible for implementing the Supreme Court’s decision in United States v. Windsor).


Mark Lemley on Justice Stevens’ Critical Role in IP Law

Justice Stevens was a believer in balance in IP rights and appropriate limits on those rights. He wrote some of the most important decisions in IP law, including the 5-4 Sony decision that made much of the technology revolution possible. And if one more justice had signed on to his Bilski opinion (which would have held business methods unpatentable), patentable subject matter might not be the mess it is right now.

Stanford Law Professor Mark Lemley

Mark A. Lemley is the William H. Neukom Professor at Stanford Law School and the Director of the Stanford Program in Law, Science, and Technology. He is also a Senior Fellow at the Stanford Institute for Economic Policy Research and Affiliated Professor at the Stanford Symbolic Systems Program. He is a founding partner at Durie Tangri LLP.

Jane Schacter Remembers Justice Stevens

Justice Stevens was a powerful voice of reason and principle on the Court for 35 years. He often articulated distinctive approaches to legal problems. I did not know him, but feel as if I have been in dialogue with him for years because his views and written opinions are perennially the subject of classroom conversation. Let me offer just a few examples, because the full list would be long, indeed. In the area of statutory interpretation, he wrote the famous Chevron opinion and sparred for years with Justice Scalia about the value of legislative history. In constitutional law, he challenged the conventional approach to equal protection; he wrote utterly piercing dissents in many cases, including Bush v. Gore, Parents Involved v. Seattle School District, and DC v. Heller; and his dissent in Bowers v. Hardwick, the 1986 case that upheld the constitutionality of criminal sodomy bans, became the explicit basis for Justice Kennedy’s later landmark opinion in Lawrence v. Texas, overruling Bowers. 

Jane S. Schacter
Stanford Law Professor Jane S. Schacter

In his later years as a justice and in his writings since retiring, he expressed increasing concern about the direction the Court was taking and became an unmistakable voice of conscience about the vital role of courts and law in a democracy. Justice Stevens’  contributions were exceptional and they will long be remembered.

Jane S. Schacter is the William Nelson Cromwell Professor of Law at Stanford Law School. Her scholarship focuses on statutory interpretation and legislative process, constitutional law, and sexual orientation law.