By Joseph Thai, Eduardo Peñalver and Andrew Siegel
Friday, April 9, 2010;
We had the honor of serving as Justice Stevens's law clerks during the court's tumultuous 2000-01 term. That term, five justices effectively handed the presidency to George W. Bush by halting the recount of votes in Florida. Our boss dissented, concluding: "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."
Yet our confidence in Stevens as a judge only grew as we worked with the man.
To prepare for oral argument in every case, Stevens meticulously read the briefs, reviewed the facts and studied the relevant law. He would then walk over to our office and plop down in a black leather armchair to chat.
Those discussions often began with baseball (Stevens still has his scorecard from the 1932 World Series game in which Babe Ruth made his "called shot" home run), golf (he plays weekly and hit a hole in one in 1990) or current events (we clerks were usually more cynical, though never more informed).
Turning to the cases, Stevens would gently probe for our preliminary views before disclosing his. If there were disagreements, he would explore it until we found common ground or a reasoned basis for our differences. If differences remained -- and Stevens had occasions to chuckle that he was the "lone dissenter" in his own chambers -- he always left his door open for a "petition for rehearing."
Stevens cared deeply about getting his reasoning right in each case. He thought that the right reasoning would lead to the right result, not the other way around. And to test his reasoning, Stevens personally crafted the first drafts of all his judicial opinions, appreciating that what sounds good out loud may not work in writing.
This process may seem routine for a judge. In fact, Justice Louis Brandeis wrote that the public respects members of the court because "they are almost the only people in Washington who do their own work." Yet for decades, our boss has been the only justice who has not delegated to clerks the primary labor of drafting opinions that shaped the law of the land.
Those opinions -- highly intelligent, honest and non-doctrinaire -- earned this appointee of Gerald Ford an early reputation as a maverick whose judgments did not conform to any ideology.
Stevens's judgments were often ahead of the times. Dissenting in the 1986 case Bowers v. Hardwick, he argued that the "liberty" protected by the Constitution extends to the intimate choices of all persons regardless of sexual orientation. The court came around to that view in 2003. The court also took more than a decade to join Stevens in condemning the execution of the mentally retarded and juveniles as violations of the Eighth Amendment.
Sometimes, Stevens's judgment defied the times. Finding the military commissions President George W. Bush created at Guantanamo Bay to be illegal, the high court's only war veteran stated with clarity what should have been obvious even in a post-9/11 world: that "the Executive is bound to comply with the Rule of Law."
Sometimes, Stevens's judgment helped usher in the times. A seminal 1984 opinion in Sony Corp. v. Universal City Studios Inc. made legal room for the DVRs and iPods of today by rejecting copyright infringement claims against the VCR.
Sadly, however, the times began falling behind Stevens. With three Republican presidents appointing seven more justices, an increasingly conservative court commenced rewriting the law in bold strokes. A consensus nominee of a moderate Republican from another era -- confirmed 98 to 0 after Watergate -- Stevens eventually acquired a media label as the court's "liberal" leader for staying the course against the unraveling of landmark decisions.
Having witnessed our nation's painful struggle against segregation, Stevens in 2007 condemned the "cruel irony" of invoking Brown v. Board of Education to strike down a modern school integration plan. With more common sense than ideological sense, Stevens in January decried overruling decades of cases to strike down bipartisan limits on corporate campaign spending that could upend elections nationwide.
We do not envy President Obama the task of finding a replacement for Stevens. At a time when confirmation hearings have embraced the orthodoxy that judges merely call balls and strikes -- rather than actually interpreting the rules of the game or applying them to unforeseen circumstances -- Stevens's tireless efforts to explain rather than mask his potentially fallible judgment calls seem almost heretical.
As heretical as "the Nation's confidence in the judge as an impartial guardian of the rule of law."
Joseph Thai is a law professor at the University of Oklahoma. Eduardo Peñalver is a law professor at Cornell University. Andrew Siegel is a law professor at Seattle University.