Cliff Sloan is a dean’s visiting scholar at Georgetown University Law Center. He served as a law clerk for Justice John Paul Stevens during the 1985 term.
Justice John Paul Stevens loved to tell the story of seeing, as a boy of 12, Babe Ruth’s famous “called shot” home run in the 1932 World Series game between his beloved Chicago Cubs and the New York Yankees. Watching Stevens perform his duties as a Supreme Court justice was a comparable experience — seeing one of the greats perform at the height of his abilities, exceeding expectations in every situation, no matter how historic or pressured.
If there is a Supreme Court hall of fame, he surely has a prominent place. Stevens was the rule-of-law justice. He taught us that no person is above the law, sometimes to the dismay of those on both sides of the political spectrum. When he ruled that Paula Jones’s lawsuit against President Bill Clinton could proceed, he enraged many on the left. And, when Stevens vigorously dissented from the court’s fiasco of a decision in Bush v. Gore and proclaimed that the real loser in the case was the nation’s confidence in the judiciary as an impartial arbiter, he, in turn, enraged many on the right. But he could not abide the court’s short-circuiting of the selection of a president, the most serious business of our democracy.
He also taught us that nobody is below the law. Not the reviled detainees at Guantanamo Bay — he led the court in rejecting the Bush administration’s attempt to establish a law-free zone of absolute executive power in the isolated island prison. And certainly not criminal defendants — he defended their constitutional rights on issues ranging from the evil of police deception of lawyers to the availability of habeas corpus. He vividly remembered his own representation of a convicted defendant who turned out to be innocent. And he had the searing memory of his father being unjustly convicted of fraud during the Depression — and of his father’s conviction being overturned by a court committed to the rule of law.
Stevens also taught us what the substance of that rule of law should contain. His dissent in the court’s notorious 1986 decision permitting the criminalization of gay sex led directly to a Supreme Court decision 17 years later enshrining the previous Stevens dissent as the law of the land. In battles over reproductive rights, he argued that the Constitution’s protection of liberty provides a fundamental safeguard for that right. In reframing the debate from “privacy” to “liberty,” he, of course, did not resolve the debate. But he put the lie to the canard that the Constitution contains not a word that would support such a right.
His consequential and historic decisions range across an astonishing array of legal categories. His opinion that speech on the Internet receives full First Amendment protection has been called the Magna Carta of cyberspace. His prescient decision that a video-copying device used for personal copies did not violate copyright laws unleashed a torrent of innovation.
As a man, Stevens was kind, gentle, down to earth, always carrying an amused glint in his eye and a delighted smile on his face. He loved to pad into his clerks’ room, plop down in his favorite sagging old black chair and talk about anything that crossed his mind — from his early-morning tennis game and the wife he adored to the weighty issues before the court and points he had gleaned from briefs or his own prodigious knowledge of the court’s precedents.
But if he was the most amiable man you’d ever have the pleasure of meeting, he was also a model of integrity and intellectual honesty. He often told a story from his days as an appellate judge when he issued a civil liberties decision in a high-profile case. He knew his decision would infuriate the administration of President Richard M. Nixon. And, he was certain, it would spike any chance he had of being on the Supreme Court. He did it anyway. I know many Stevens clerks who confide that, when faced with difficult personal and professional situations, they think of the justice and then the path becomes clear — just do the right thing.
Above all, Stevens knew that the majesty of the law comes when the Supreme Court rises above being a predictable political player, when it acts, and is seen as acting, as an impartial guardian of the rule of law even if one disagrees with its individual decisions. He knew that the court’s greatest moments — from Chief Justice John Marshall’s Marbury v. Madison decision to Brown v. Board of Education and the Nixon tapes case — have come when the court has lived up to that role. And its worst moments have come when the court has failed to do so.
It is perhaps fitting that this magnificent justice — who was appointed to the Supreme Court by President Gerald Ford explicitly as an antidote to the Nixon administration’s fierce assault on the rule of law — has died at a moment of unprecedented challenges to the judicial values he cherished most. His life, and now his death, are a beacon calling us to the rule of law.
The best way to honor him is to fight as hard as we can every day for that principle. That is unquestionably what he would do.