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Goodbye to the 'rule of law' justice

By Cliff Sloan
Saturday, April 10, 2010; A17

With his bow tie and genial Midwestern air, John Paul Stevens is the most unassuming of men. He loves to tell of moving to Washington and, on a bank application, listing "Justice" as his occupation. The skeptical bank clerk replied, "Okay, last week, I had a guy who said 'Peace.' "

But Stevens's lack of airs should not be mistaken for a lack of influence. Pundits pegged him as a maverick in his early years and then, more recently, as the "leader of the liberal bloc" and a de facto chief justice on many issues. The most apt description, however, is the one a senator used when President Gerald Ford nominated Stevens to the Supreme Court: "a judge's judge."

As a former law clerk to Stevens, I am hardly impartial. But any fair appraisal would conclude that John Paul Stevens is one of the greatest of the 111 justices who have served on the Supreme Court. He is the "rule of law" justice. He has stood for that principle in a range of contexts and cases, on matters large and small. And he leaves the court with one of the most far-reaching and consequential legacies of any of its members.

Perhaps most prominently, Stevens led the court in emphasizing and protecting the rule of law in the series of cases on the Bush administration's handling of detainees and the "war on terror." Stevens wrote the seminal 2006 opinion holding that detainees at Guantanamo Bay have legal rights, and he led in other cases reaffirming the role of courts and the rights of the detained.

Stevens's commitment to the rule of law is reflected in his deference to an orderly judicial process, even when the presidency is at stake. In his memorable dissent in Bush v. Gore, Stevens excoriated the majority for trampling on the process of the Florida courts. In his unforgettable coda, he wrote that "the clear loser" was "the Nation's confidence in the judge as an impartial guardian of the rule of law."

But Stevens showed the same commitment to the rule of law and the courts in Clinton v. Jones, in which he rejected President Bill Clinton's claim that Paula Jones's lawsuit should be deferred until after his presidency. And the very same people who lauded Stevens's confidence in the judicial process in Bush v. Gore deplored it in Clinton v. Jones.

In recent years, commentators have sometimes expressed surprise if Stevens did not reach a "liberal" result. When he voted with the court's "conservatives" two years ago in upholding lethal injection as a form of capital punishment, and in upholding Indiana's voter identification law, court mavens speculated wildly about his motives. The possibility that he simply was evaluating the facts and law in each case, rather than voting for a political result, seemed naive.

But that is what a "judge's judge" does.

The range and scope of this nearly 90-year-old man's opinions are remarkable. For example, he has had a profound impact in the area of technology and new media. In the 1997 case Reno v. American Civil Liberties Union, he wrote what has been called the "Magna Carta" of the Internet in an opinion striking down limitations on Internet speech and giving the highest form of First Amendment protection to cyberspace. His path-breaking 1984 opinion in Sony Corp. v. Universal City Studios, rejecting a copyright challenge to Betamax VCRs, unleashed technological innovation.

It is no secret that Stevens has at times been concerned about the recent direction of the court. He vehemently objected to recent decisions finding an individual Second Amendment right to bear arms and a First Amendment right for corporations in the area of campaign finance. To read these dissents is to understand how a justice committed to the rule of law frames his disagreement -- with tightly reasoned legal arguments and overwhelming citation of evidence and authority. Rather than bombast or rhetoric, Stevens emphasizes the strength of his case. This is why his dissents and concurrences frequently have carried the day in later opinions and are likely to do so after he retires.

That Stevens does his own work is an important element of being a judge's judge. To this day, Stevens writes the first (polished) draft of every opinion, whether majority, concurrence or dissent. He loves to brainstorm with his clerks as he plunges, with a fresh mind and a fresh eye, into the facts and law of every case.

When Stevens wrote that Bush v. Gore undermined the public's faith in an independent judiciary, a former Reagan administration Justice Department official quickly responded that Stevens's role as a justice itself was a reassurance to the public about the fairness of the courts. Stevens's record will continue to provide that reassurance after he departs. Few have graced the Supreme Court with such fidelity or stood so powerfully for the rule of law. He leaves a legacy that will endure.

The writer, a former general counsel of WashingtonPost.Newsweek Interactive, is a partner at Skadden Arps. He clerked for Justice Stevens in the 1985-86 term.

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