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An Astute Negotiator: Chicago Native Justice John Paul Stevens Steps Down

Justice John Paul Stevens
WUIS/Illinois Issues

Stevens’ friends say he doesn’t agree that he has become more liberal, believing instead that the philosophical makeup of the court has become more conservative. Many believe both shifts happened. 

When retired U.S. Supreme Court Justice John Paul Stevens wanted to go swimming during a recent trip to Hawaii, many warned him against the idea because of the ocean’s strong undertow.

Stevens, now 90 years old, encountered resistance from locals, as well as Navy SEAL trainers on the beach. But the Chicago native, who is a strong swimmer, was determined.

“They said, ‘Justice Stevens, it’s very rough.’ They didn’t realize they were dealing with a very astute negotiator,” says Stevens’ daughter, Susan Stevens Mullen. “He talked his way into the water. … He’s persistent and confident and comfortable with what he’s capable of doing.”

Those traits also showed in Stevens’ work on the Supreme Court, many observers say. Stevens’ retirement was effective on June 29, 2010, making him the third-longest serving justice in the court’s history. He served 34 years, six months and 10 days.

Stevens declined a request to be interviewed for this article, but many of his former law clerks, colleagues, law professors and Stevens’ daughter portray him as a justice who will be remembered for looking at cases individually, treating others with respect and taking his job seriously.

“He considered every case closely and carefully,” says Joseph Thai, who was a law clerk for Stevens from 2000-2001 and is now a law professor at the University of Oklahoma College of Law. “He just thought it was an important job that he executed with a sense of responsibility but without a sense of [his own] importance.”

Stevens was born into a prominent Chicago family on April 20, 1920, and grew up in the Hyde Park neighborhood. His grandfather was the founder of the Illinois Life Insurance Co., and his father built the 3,000-room Stevens Hotel in Chicago, now the Hilton Chicago, in 1927.

But the Great Depression devastated his family’s businesses, bankrupting the hotel. Stevens’ father, grandfather and uncle were indicted for diverting money from the family’s life insurance company to make interest payments on bonds for the hotel. Soon after, Stevens’ grandfather had a stroke from which he never fully recovered, and his uncle committed suicide. In 1933, his father was convicted of embezzling $1.3 million. In 1934, the Illinois Supreme Court overturned the conviction, stating that there was “not a scintilla of evidence of any concealment or fraud attempted.”

Mullen, a lawyer in northern Virginia, says she doesn’t think the incident affected the way her father has viewed the judicial system or ruled from the bench, as some have speculated.

“He was just a little boy. It never occurred to him that his father was guilty,” Mullen says. “It wasn’t a big surprise when the appellate court overturned the ruling. He had complete faith in his father.”

Stevens attended the University of Chicago Laboratory Schools from elementary grades through high school. He then studied English literature at the University of Chicago, from where he graduated Phi Beta Kappa in 1941.

Stevens joined the U.S. Navy on December 6, 1941, the day before the bombing of Pearl Harbor, and served from 1942 until 1945. He worked as a code breaker during World War II and earned a Bronze Star.

He married Elizabeth Jane Shereen in 1942, and the couple had four children: John Joseph, who died of cancer in 1996; Kathryn; Elizabeth; and Susan. The couple divorced in 1979, and Stevens married Maryan Mulholland Simon in December of that year. Stevens has nine grandchildren and 10 great-grandchildren.

After the war, Stevens attended Northwestern University School of Law and graduated at the top of his class with a juris doctor degree in 1947. He clerked for U.S. Supreme Court Justice Wiley Rutledge during the court’s 1947 term and then entered private practice in Chicago, where he specialized in antitrust law. He also taught at the law schools at Northwestern and the University of Chicago.

Stevens served as associate counsel to the Subcommittee on the Study of Monopoly Power of the Judiciary Committee of the U.S. House of Representatives from 1951-1952. And he was a member of the Attorney General’s National Committee to Study Antitrust Law from 1953-1955.

In 1969, Stevens served as counsel to a state commission investigating allegations of bribery on the Illinois Supreme Court. The commission uncovered wrongdoing by the chief justice and an associate justice of the Illinois Supreme Court, and both resigned. 

“Stevens just did a very courageous, skillful job in putting this case together,” says Kenneth Manaster, a law professor at Santa Clara University School of Law who wrote a book about the incident and was one of several volunteer lawyers on the commission’s staff.

Stevens’ work on the commission came to the attention of Republican U.S. Sen. Charles Percy of Illinois, who recommended to President Richard Nixon that Stevens be appointed to the U.S. Court of Appeals for the Seventh Circuit. Nixon appointed Stevens to that court in 1970.

In 1975, President Gerald Ford appointed Stevens to the Supreme Court, based on a recommendation by Attorney General Edward Levi, who was familiar with Stevens’ anti–corruption reputation in Illinois. Stevens took his seat on the nation’s highest court on Dec. 19, 1975, replacing Justice William O. Douglas.

Susan Low Bloch, a constitutional law professor at Georgetown University Law Center and author of a book about the Supreme Court, was a clerk for Justice Thurgood Marshall when Stevens, a Republican, joined the court.

“When he first got on, we all referred to him as a maverick because he was very unpredictable as to how he would vote,” Bloch says.

Since then, Stevens gradually became known as a liberal on the court and eventually, the leader of the court’s liberal wing. Supreme Court observers and Stevens’ friends say he doesn’t agree that he has become more liberal, believing instead that the philosophical makeup of the court has become more conservative. Many believe both shifts happened. 

“Both the court moved right and he moved left,” Bloch says.

She points to affirmative action and the death penalty as areas in which Stevens’ views have shifted to the left.

Soon after he joined the court, Stevens voted to reinstate the death penalty. During Stevens’ tenure on the court, however, his opinion of the death penalty changed, and he frequently voted to narrow the scope of it, observers say.

Stevens also changed his views on affirmative action, first opposing its use in a case involving federal contracts and later deciding there are times when it could be beneficial, such as in education.

He was appointed at a time when social issues were not as important to the Republican Party as they became under Presidents Ronald Reagan and George Bush, says John McGinnis, a law professor at Northwestern.

“He’s less different from the kind of ideal justice the Republican Party would have wanted in 1975 than the kind of justice the Republican Party would have wanted in 1991,” McGinnis says. “With respect to Stevens, while he’s moved to the left, the Republican Party also has moved to the right.” Bloch says Stevens was selected when justices were picked for their abilities and not with a “left-right frame of reference.”

“The court today is much more right versus left, and in that sense, it’s very different from the days in which he was chosen,” Bloch says. “He was chosen by a Republican but not with some of the extreme views that were held today.”

Stevens was an interesting appointment to the Supreme Court because, although his family was socially prominent, he did not come from a political background, says Robert Bennett, a law professor and former dean at Northwestern.

“He wasn’t a glad-hander who would go around and try to garner votes this way or that way,” Bennett says. “He’s such a decent, understated guy that over time, he was able to easily relate to everybody.”

For a period of 16 years ending with his retirement, Stevens was the court’s highest ranking member after the chief justice. In that position, he decided who would write the court’s opinion if Stevens was in the majority and the chief justice was in the minority, or the main dissenting opinion if Stevens was in the minority and the chief justice was in the majority.

Observers say Stevens used that ability well because he often assigned opinions to a justice who might waver in his or her decision. Stevens thought that the act of writing would help strengthen that justice’s decision, observers say.

“In a sense, Justice Stevens was able to function as a chief justice of the liberal wing of the court,” says Richard Garnett, a law professor at the University of Notre Dame Law School.

Stevens will not be remembered for a consistent philosophy or approach to cases, Garnett says, but for his leadership as the senior justice of a consistent group of left-leaning justices during an 11-year period when the court’s makeup stayed the same. That time period, from 1994-2005, was the second longest stretch in the court’s history during which its members did not change and the longest since the court has had nine justices, Bloch says.

“He was able to assign opinions in a number of close 5-4 cases. His influence will be his seniority and leadership in that group of justices at that particular time,” Garnett says. 

Bloch says Stevens would consider each case on its merits.

“He approached each case individually and, within the constraints of the law, tried to do justice,” Bloch says. “I think he was his own man who didn’t fit neatly into any box. I know we talk about him as a liberal, but I don’t think that’s really right. He decided the cases as he saw them.”

Stevens usually wrote the first draft of his opinions himself instead of assigning that task to a law clerk because he thought it was an important part of his job, Thai says.

Stevens also had his law clerks examine each petition that came to the Supreme Court for consideration. Many of Stevens’ colleagues, instead, allowed their law clerks to divide the work with other justices’ clerks and exchange findings. That meant Stevens’ clerks reviewed 9,302 petitions that were filed for the 2009 term that ended in June; 8,966 the year before; and 9,602 petitions for the 2007 term, says Patricia McCabe Estrada, a spokeswoman for the court.

Stevens sent a letter to President Barack Obama in April that said he planned to retire “effective the next day after the Court rises for the summer recess this year.”

Obama nominated Elena Kagan, who was solicitor general of the United States and a former professor at the University of Chicago Law School and former dean of the Harvard Law School, to replace Stevens. She was confirmed by the Senate and sworn in as an associate justice in early August.

On his last day in court, Stevens read a letter to his fellow justices before a crowded courtroom, where many observers wore bow ties in honor of Stevens’ favorite choice of neckwear. He said it had been “an honor and a privilege” to have worked with them.

“If I have overstayed my welcome, it is because this is such a unique and wonderful job,” Stevens read.

Chief Justice John Roberts also read a statement to Stevens that said, in part: “Your decision to retire saddens each of us in distinct ways. We will miss your wisdom, your perceptive insights and vast life experience, your unaffected decency and resolute commitment to justice. But we also know that your presence will endure through your contributions to the Court’s work.”

Legal scholars identify a variety of cases for which Stevens will be remembered, including decisions that expanded the rights of prisoners held at Guantanamo Bay, Cuba; established the authority of regulatory agencies; and allowed consumers to record television shows.

They also point to many of his dissents as memorable, including his views that flag burning should not be protected under the First Amendment; that the recount the Florida Supreme Court had ordered in the 2000 presidential race should not have been stopped; and that corporations should not be allowed to spend unlimited amounts on campaigns.

In his dissent in the presidential race case, Bush v. Gore, Stevens worried about the case’s effect on the role of the judiciary. 

“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,” Stevens wrote.

“I think he will be known as one of the great dissenters on the court, and also I think he’ll be remembered as one of the true independent justices,” said Bill Barnhart, author of a recently released biography of Stevens.

Stevens believes that the way the Constitution is interpreted can change over time and should not be strictly viewed, observers say.

“He’s learned to grow as our society has grown,’’ says Abner Mikva, a former chief judge of the U.S. Court of Appeals for the District of Columbia Circuit who is also from Chicago and is a friend of Stevens. “It’s a difficult role, and he’s played it very well.”

Thai says that “a large part of his legacy is deciding not to decide, is advocating the view that the way that the court should interpret the Constitution is to take little steps over time, to trust in the evolution of law over time and to trust in the wisdom of taking little steps instead of taking large steps.”

He adds that Stevens also will be remembered for his independence and intellect.

Cliff Sloan, a law clerk of Stevens from 1985-1986 who is now a partner in the Washington, D.C., office of Skadden, Arps, Slate, Meagher & Flom, observed that Stevens “had such a profound impact on the court in his almost 35 years on the court.” He pointed to Stevens’ decisions in several cases, such as those that expanded the rights of prisoners held at Guantanamo and others that required the president to follow the law, as important.

Diane Marie Amann, who was a law clerk for Stevens from 1988-1989 and who is a law professor at the University of California, Davis School of Law, says Stevens’ legacy will be “significant and long-lasting.” She also points to the decisions related to Guantanamo as important. 

“Those cases have really required the political branches of government to come up with ways of dealing with persons captured in counterterrorism operations in a way that tracks American tradition of due process far more closely than the government was doing before the cases were decided,” says Amann, who is researching a book about Stevens.

Known for his polite manner of asking questions during Supreme Court arguments, Stevens often would wait until the middle of an argument. Then he would begin by asking, “Excuse me counsel, may I ask you a question?” Sloan says.

“Justice Stevens, in a gentle way, is the most devastating questioner,” says Sloan, who has argued in front of Stevens at the Supreme Court five times. “You can kind of hear the saw going into the floor because he asks a question that just cuts right at your case, either at its most weak point or at a point that you hadn’t thought of.”

Stevens also always treated law clerks respectfully, usually asking their opinions about cases before sharing his thoughts.

“He really could have done the job himself. He knew what he thought, but he treated us as if we were adding something to the process,” says Pamela Harris, who was a law clerk for Stevens from 1992-1993 and is now a visiting professor at Georgetown University Law Center and the executive director of the school’s Supreme Court Institute.

Manaster says Stevens has “tremendous intelligence, tremendous compassion and a rare degree of humility,” adding that Stevens referred to his role on the Supreme Court simply as “his job.”

“He’s just someone who I think really embodies the best of being a judge. He realizes he’s got this responsibility to do his job to represent the public, and that’s it,” Manaster says. 

Stevens, who has homes in Florida and Virginia, is an avid Chicago Cubs fan. (He threw out the first pitch in 2005 at Wrigley Field.) He also enjoys swimming, golfing and playing tennis. He plays tennis with his daughter each week.

Mullen says her father wanted to retire while he was still capable of doing the job well. “He does love his job, but, you know, he’s in a very high-profile position, and you don’t want to fail in the public eye in that position,” Mullen says. “He wanted to retire at the top of his game.” 

Maura Kelly Lannan is a Washington, D.C.-based free-lance writer who previously covered government for the Associated Press in Illinois. 

Illinois Issues, September 2010

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