It’s difficult to say whether the life of Justice John Paul Stevens, who died last week in his Florida retirement at age 99, was important in the history of American jurisprudence or in American politics. Perhaps both.
As the obituaries have noted, Stevens’ great age connected him to a bygone era. He grew up in Chicago during Prohibition, the son of a hotel proprietor. At Wrigley Field during the 1932 World Series, he witnessed Babe Ruth’s famous “called home run.” He was last justice to have served in World War II, winning the Bronze Star as a naval officer based at Pearl Harbor, cracking Japanese codes.
At the same time, in revealing ways, Stevens was a transitional figure in law and politics.
When the old New Deal radical William O. Douglas stepped down from the Supreme Court in 1975, President Gerald Ford, who had once sought to impeach Douglas and was planning to campaign for election the following year, found in his fellow Midwesterner what Ford guessed would be a safe, distinguished, above all eminently acceptable, nominee to face an overwhelmingly Democratic Senate. Stevens was a registered Republican with what was described at the time as a “moderately conservative” record as a federal judge on the Seventh Circuit Court of Appeals, appointed by Richard Nixon. After a brief, perfunctory committee hearing, Stevens was unanimously confirmed by the Senate two weeks later.
Whether Ford expected Stevens to push the Court in any particular direction is hard to say. Nixon had sought to appoint “strict constructionists” to counteract the influence of the liberal, precedent-shattering Warren Court. What ultimately became evident, however, is that Stevens, to the extent that he possessed any kind of judicial philosophy, was very much a product of his times, and subject to the tendency of justices to evolve politically.
He began, for example, as a proponent of capital punishment but ended as a critic, declaring that “state-sanctioned killing is … becoming more and more anachronistic.” Stevens was part of the Court majority that, in 1978, invalidated admissions policies at a University of California medical school that had discriminated against a white applicant. He ended his tenure as a reliable proponent of racial quotas and affirmative action. While registering an impassioned dissent when the Court upheld the constitutional right to burn the American flag (1989), he voted in 2008 to deny that the Second Amendment protected the right of individuals to own firearms.
His perspective on the powers of government was equally mixed. Stevens’ majority opinion in a well-publicized case on eminent domain, Kelo v. New London (2005), held that a municipal government could seize private property for the benefit of private, not public, development. By contrast, it was Stevens who spoke for the Court majority in two critical decisions from the War on Terror: The first placed enemy combatants held at Guantánamo Bay under the jurisdiction of federal courts (2004), while the other forbade the George W. Bush administration from putting Taliban detainees on trial by military commission (2006).
Of course, this is a familiar pattern: Justices who are appointed to the Court sometimes move in one ideological direction or another. Felix Frankfurter, whose appointment in 1939 was hailed as a triumph of liberalism, ended his career as a reliable judicial conservative. Similarly, the author of the majority opinion in Roe v. Wade (1973) was Harry Blackmun, a Nixon appointee.
In that respect, the bow-tied, plain-spoken, unfailingly courteous Stevens was not necessarily the elder statesman of the Court’s liberal bloc, as many have suggested, so much as a reliable guardian of judicial prestige. This was most evident in his famous dissenting opinion in Bush v. Gore (2000), when the Court halted the incessant ballot counts, and recounts, in Florida. In that case, Stevens complained, “the identity of the loser is perfectly clear. It is the nation’s confidence in the judge as the impartial guardian of the rule of law.”
Philip Terzian, a former writer and editor at the Weekly Standard, is the author of Architects of Power: Roosevelt, Eisenhower, and the American Century.
