California Forum

Justice John Paul Stevens’ legacy: Unfailing decency

How-to: Column and Op-Ed submissions

Have a personal story or opinion on something happening in California or the Sacramento region that you think our readers need to hear? Here is how to submit an op-ed.
Up Next
Have a personal story or opinion on something happening in California or the Sacramento region that you think our readers need to hear? Here is how to submit an op-ed.

Justice John Paul Stevens, who died on July 16 at age 99, should be remembered as a brilliant man of unfailing decency. I argued several cases in the Supreme Court in front of him, sometimes getting his vote and sometimes not, and watched or listened to countless more. Never did I see him treat a lawyer or a fellow justice with anything other than respect.

At a time when civility is in desperately short supply, his memory should be a model for lawyers and judges and even politicians. At a deeply polarized time, Stevens, a life-long Republican who was appointed to the Supreme Court by Republican President Gerald Ford, also should be a model for how judges should transcend politics.

In addition to arguing in front of Stevens, over the years I attended a number of conferences where he was present. At the first of these, when I met him, I mentioned that I had gone to the same high school in Chicago that he attended many years earlier. Every time I saw him after that, he remembered and always mentioned that connection.

After he retired from the Supreme Court after 35 years as a justice, Northwestern University held a conference in his honor. I was asked to speak about his jurisprudence and was more than a bit intimidated that he was sitting in the center of the front row. I began by saying that there are many things for which I am grateful to Stevens, but high on the list is that thanks to him no longer are Nathan Leopold and Richard Loeb the most famous people to have gone to my high school.

Stevens laughed heartily, though I realized that most of the law students in the room had no idea who Leopold and Loeb had been. Leopold and Loeb kidnapped and murdered Bobby Franks in 1924 to prove that they could commit the perfect crime. They were defended by Clarence Darrow, who famously presented a passionate and successful argument against the death penalty.

Opinion

In three and a half decades on the high court, Stevens wrote hundreds of opinions. I think he will be especially remembered for three dissents. In 2000, in Bush v. Gore, he wrote an emphatic dissent against the U.S. Supreme Court deciding the presidential election. It was apparent after election day that the Electoral College vote, and ultimately the choice of president, would turn on the winner of Florida. After the Florida Supreme Court ordered the counting of all of the uncounted ballots, the U.S. Supreme Court stepped in and by a 5-4 vote ended this, thereby ensuring that George W. Bush would become president.

Justice Stevens powerfully wrote that the U.S. Supreme Court’s decision “can only lend the credence to the most cynical appraisal of the work of judges throughout the land... 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.”

I

erwin chemerinsky.JPG
Erwin Chemerinsky

n 2008, Stevens wrote a vehement dissent in

District of Columbia v. Heller

, the first time in history that the Supreme Court struck down a law as violating the Second Amendment. The Supreme Court invalidated a 35-year-old District of Columbia ordinance that prohibited private ownership and possession of handguns. Stevens looked carefully at the language of the Second Amendment and its history. He concluded that the Second Amendment protects only a right of people to have guns for the purpose of militia service.

In 2010, in Citizens United v. Federal Election Commission, Stevens dissented from the Supreme Court’s holding that corporations have the First Amendment right to spend unlimited amounts of money from their treasuries in election campaigns. Stevens objected to the overruling of a seven-year-old precedent that came to the opposite conclusion. He stressed that nothing in the original understanding of the First Amendment suggests that spending money in election campaigns should be regarded as speech or that corporations should have First Amendment rights.

It is striking in these dissents that Stevens was following traditional conservative principles: respect for state sovereignty, adhering to the Constitution’s text and original understanding and following precedent. It was the five more conservative justices in each case who abandoned these principles to follow their ideology.

Although he strongly dissented, he did so without sarcasm or personal attacks on his fellow justices or on those with whom he disagreed. Like at oral arguments, he always exemplified civility and basic decency. This, as much as any opinion he wrote, is how he should be most remembered as a justice.

Erwin Chemerinsky is dean and professor of law at the UC Berkeley School of Law. He can be contacted at echemerinsky@law.berkeley.edu.

Related stories from Sacramento Bee

  Comments