Taking Stock: A Review of Justice Stevens’s Last Book and an Appreciation of His Extraordinary Service on the Supreme Court

Posted in: Book Reviews

Justice John Paul Stevens, The Making of a Justice: Reflections on My First 94 Years (Little Brown and Company 2019)

When John Paul Stevens died in mid-July, the nation not only mourned the death of a great justice, it also acknowledged the passing of an era on the Supreme Court. Nominated in 1975 by President Gerald Ford and promptly confirmed by a unanimous Senate, Stevens was the last justice appointed before the politicization of the Court during Ronald Reagan’s presidency—a phenomenon that has metastasized in recent years. Since Justice Samuel Alito’s appointment in 2005, no justice has received more than 68 votes in a confirmation vote.

Stevens served as an Associate Justice from 1975 to 2010. He was active in his retirement. Among other things, he wrote three books, including The Making of a Justice: Reflections on My First 94 Years, published shortly before his death. I have long admired Justice Stevens and have written several articles commending his common-law approach to deciding cases. It pains me somewhat to say that Making is not a great book. It is too long—inevitable when the author goes year-by-year through his 35 years on the Supreme Court—yet doesn’t say enough.

In the first quarter of Making, Stevens describes his life before he became a justice. Many of the anecdotes are interesting, but only occasionally does Stevens connect his life prior to the Supreme Court to his work as a justice or otherwise reflect on these stories. The rest of the book essentially reviews cases decided during his tenure on the Court, and much of what Stevens has to say is descriptive and summary.

Even if Stevens did not write a great memoir, he certainly lived a great life, one that is well worth celebrating given his outstanding service on the Supreme Court.

This review will discuss a number of different aspects of the book. First, I note certain connections between Stevens’s life and his work as a justice. Second, as a professor of civil procedure and administrative law, I consider what Making adds to our understanding of several important decisions Stevens wrote in those areas. Third, and finally, I briefly comment on his role as a great dissenter—a task he performed with brilliance and grace.

The Life and the Work

Stevens was born in 1920, grew up in Chicago, and attended college at the University of Chicago, where he majored in English and graduated with honors. During World War II, he served as a naval intelligence officer. Shortly after the war ended, Stevens was released from active duty and began law school at Northwestern. He graduated magna cum laude two years later and served as co-editor of the Law Review.

The seeds of Stevens’s common-law jurisprudence were planted early in law school. Under this approach, the law develops on a case-by-case basis, with the judge paying careful attention to the facts and deciding cases narrowly. Stevens’s focus on facts likely was inculcated in his Torts and Contracts courses.

Dean Leon Green taught Torts. “Instead of organizing the subject by studying cases involving one rule after another”—the method introduced by Dean Christopher Columbus Langdell and then prevailing at Harvard and other law schools—Green taught the course with his own casebook, which included “separate chapters for cases involving different types of fact patterns,” according to Stevens. Chapter 2 “was titled ‘Threats, Insults, Blows, Attacks, Fights, Restraints, Nervous Shocks.’”

Professor Harold Havighurst took a similar approach to Contracts. His casebook “contained four parts: ‘Services,’ ‘Gratuities,’ ‘Loans,’ and ‘Contract for the Sale of Goods.’” Both professors, Stevens notes, “stressed the importance of a thorough understanding of the facts that had given rise to the dispute and identifying the decision-maker . . . who should resolve the issues in the case.”

As a justice, Stevens consistently showed as much concern for who should make a decision—judge or jury (see his dissent in Scott v. Harris), state or federal court (see his dissent in Michigan v. Long)—as to what the decision should be. The lessons he learned in law school were enduring.

One other aspect of Stevens’s biography is worth noting. Stevens was born to a wealthy family. His paternal grandfather accumulated a fortune through real estate investments. His father managed two family-owned hotels, including the Stevens Hotel in Chicago, built in 1926 “and at the time the largest hotel in the world,” he writes. The stock market crash in 1929 was disastrous for the hotel, which borrowed more than a million dollars from a life insurance company controlled by Stevens’s grandfather, uncle, and father. Neither that loan nor additional funds could prevent the hotel from becoming insolvent.

“Although the loan did not violate any law regulating the insurance business, the state’s attorney for Cook County viewed the decision to make the loan as a criminal act” and secured an indictment charging the three men with embezzlement, according to Stevens. His grandfather had a stroke, his uncle committed suicide, and his father, the only defendant to stand trial, was convicted in 1933.

A year later, Stevens recounts, the Illinois Supreme Court overturned the conviction “in an opinion stating that the record of his trial did not contain even a ‘scintilla’ of evidence of criminal intent.” After describing his father’s vindication, Stevens states that, “[i]n recent years, my firsthand knowledge of the criminal justice system’s fallibility has reinforced my conviction that the death penalty should be abolished.”

Administrative Law & Civil Procedure

Stevens is the author of the paradigmatic administrative law case, Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. In Chevron, the Court set out a two-step approach for reviewing an administrative agency’s interpretation of statute that it administers. It is, according to Stevens, “the most frequently cited opinion” he “authored during [his] tenure on the Court.”

That is not the only reason Chevron is the quintessential administrative law case, however. In his opinion, Stevens included a succinct yet cogent explanation for why courts should defer to an agency’s interpretation of an ambiguous regulatory statute: agencies are experts “in the field” and federal judges are not. Furthermore, agencies are more politically accountable than federal judges. Accordingly, Stevens wrote:

When a challenge to agency construction of a statutory provision, fairly conceptualized, really centers on the wisdom of the agency’s policy, rather than whether it is a reasonable choice within a gap left open by Congress, the challenge must fail. In such a case, federal judges—who have no constituency—have a duty to respect legitimate policy choices made by those who do.

As an administrative law professor, I consistently return to these two points over the course of the semester.

The portrait of Chevron that emerges from Making is that of the accidental blockbuster that almost never came to be. “The importance of the decision was not recognized when the case arrived at the Court,” he writes. Initially only two justices voted to grant the petition for certiorari from the U.S. Court of Appeals for the D.C. Circuit. Then, after the petition was granted, three justices disqualified themselves from the case.

“After the oral argument,” Stevens recounts, “Chief Justice Burger and Bill Brennan both voted to affirm, and the remaining four votes were tentatively to reverse.” Stevens was asked to draft the majority opinion and ultimately the Court decided unanimously to reverse the D.C. Circuit.

As a civil procedure professor, I was curious as to whether Stevens would pull back the curtain on two of the most important cases of this century: Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, in which the Supreme Court established a plausibility standard for evaluating whether the allegations of a legal claim are sufficient to avoid dismissal. The most he reveals is a wry sense of humor.

Prior to Twombly, the Federal Rules of Civil Procedure set up a system known as notice pleading, in which a plaintiff could start a lawsuit simply by filing “a short and plain statement of the claim.” In 2007, the Supreme Court held in Twombly that the higher plausibility standard applied in evaluating the allegations of a plaintiff’s antitrust claim. Justice David Souter wrote the majority opinion for the Court, while Stevens wrote a dissent that Justice Ruth Bader Ginsburg joined.

Stevens’s dissent was based on two core beliefs. First, as a former antitrust lawyer, he believed the majority was wrong on the law, and he argued persuasively that it would be premature to dismiss the plaintiff’s claims before the parties had engaged in pretrial discovery. Second, Stevens believed that notice pleading was vital to ensure access to the federal courts. Making reveals Stevens’s commitment to access to the courts decades prior to Twombly in his dissent in Estelle v. Gamble, a prisoner’s rights case decided in 1977.

Two years after Twombly, the Supreme Court held in Iqbal that the plausibility pleading standard applies in all civil cases, not just those involving antitrust claims. Iqbal was decided by a 5-4 vote, and this time Souter joined Stevens in dissent. “As the senior of the four dissenting justices,” Stevens writes, “I took special pleasure in assigning the dissent to David, the author of the Court’s opinion in Twombly.”

A Great Dissenter

Although Stevens did not write a dissent in Iqbal, he wrote a number of powerful dissenting opinions, especially as the Court shifted to the right under Chief Justices William Rehnquist and John Roberts. Much was made of this aspect of Stevens’s tenure on the Court in the obituaries written this summer.

Stevens displayed an especially formidable combination of legal acumen and passion when he dissented in cases involving the nature and structure of our political process. In Bush v. Gore, Stevens dissented from the Court’s decision resolving litigation over the 2000 presidential election, concluding that although “we may never know with complete certainty the identity of the winner of [the 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 a similarly powerful dissent in Citizens United v. Federal Election Commission, in which the Court held that the First Amendment does not allow the government to restrict independent expenditures by corporations for political communications. And he consistently urged the Court to review legal claims of political gerrymandering—a project the Supreme Court will not take on after its decision earlier this year in Rucho v. Common Cause.

In Making, Stevens discusses Bush v. Gore in some detail, taking the reader on a rollercoaster ride of the case that decided the election. Even though, as he wrote, Stevens remained “of the view that the Court has not fully recovered from the damage it inflicted on itself in” Bush v. Gore, he nonetheless maintains an even tone in describing the developments in the case.

Stevens’s account of Bush v. Gore is gracious. He never questions whether anyone—not any of the lawyers, nor any of the justices—acted in other than good faith. And while he certainly had strong views on how the case should have been decided, he does not allow them to shade his account of what occurred.

Indeed, Stevens’s grace is on display throughout the entire book. In our increasingly partisan times, it is this quality of his that we likely miss the most.

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