Wednesday, April 14, 2010

"Learning on the Job": The Evolution of Justice Stevens

      As a federal appeals court judge in Chicago in the 1970s, John Paul Stevens sat on a case challenging political patronage — the long established practice of awarding government jobs on the basis of political affiliation. Stevens initially saw no grounds for a constitutional attack, but after research and argument wrote an opinion finding the practice a violation of First Amendment political rights.
      None of Stevens’ colleagues joined the opinion. But Stevens stayed on the bench long enough to see his view adopted, at least in part, in three Supreme Court decisions.
      Stevens told that story in remarks at a forum in his honor sponsored by Fordham University Law School in 2005. Stevens related the episode to his view of the judicial role. “Learning on the job is essential to the process of judging,” Stevens said.
      Perhaps no justice in history better exemplifies than Stevens the importance, or the impact, of learning on the job. In a 34-year Supreme Court career that will end as the third longest of any justice, Stevens evolved from a centrist Republican and frequent maverick to a leader of the Court’s liberal bloc and an effective coalition-builder in a number of critically important decisions.
      In interviews while weighing his retirement, Stevens discounted the “evolution” theory. He insisted he was and remains a “conservative,” his views largely unchanged as the Court changed around him. His protestations must be taken with several grains of salt.
      Stevens’ record is full of seemingly inconsistent decisions that can be reconciled only with difficulty. He voted in 1978 to strike down the race-based admissions program at the University of California-Davis Law School, but approved a more nuanced racial preference system at the University of Michigan Law School in 2003. In like vein, Stevens voted in 1980 to strike down a federal minority-preference government contracting program but shifted sides to support a more carefully structured program in 1995.
      In one of his first abortion-related cases, Stevens in 1977 helped to uphold a state’s refusal to pay for nontherapeutic abortions for indigent women. Barely three years later, he led four dissenters when the Court approved the Hyde Amendment’s broader federal ban on abortion funding. He went on to become a strong defender of abortion rights, playing a behind-the-scenes role in the final form of the 1992 decision that left Roe v. Wade on the books.
      Stevens wrote the so-called Pacifica decision in 1978 that gave the Federal Communications Commission (FCC) the green light to ban “seven dirty words” on radio and television. Two decades later, he led a nearly unanimous Court in 1997 in overturning Congress’s attempt to ban indecency on the Internet. When the FCC came back before the Court defending its ban on “fleeting expletives,” Stevens voted in 2009 to reject the policy, saying Pacifica never envisioned such sweeping censorship.
      On one issue, however, Stevens acknowledges a change of views: capital punishment. In his first term, Stevens was part of a triumvirate of “centrist” justices — along with Potter Stewart and Lewis F. Powell Jr. — that paved the way in 1976 for the return of capital punishment. The decision in Gregg v. Georgia permitted judges or juries to impose the death penalty under a system of “guided discretion."
      With 32 years’ experience under that system, Stevens concluded in 2008 that the effort to impose the death penalty with complete evenhandedness and assured reliability had failed. The risk of error and the risk of discriminatory application, Stevens wrote in Baze v. Rees, make the costs of capital punishment far greater than benefits he found to be “negligible.” Justice Antonin Scalia wrote separately in the case to mock Stevens’ use of his personal “experience” in reaching that position.
      Without referring to Stevens by name, Justice Clarence Thomas has also mocked what conservatives regard as the tendency of justices to shift to the left over time. “I’m not evolving,” Thomas is said to have promised after his contentious confirmation in 1991. And he has not. The same death penalty cases that caused Stevens to change his stance have left Thomas unmoved; he consistently votes to reject death penalty challenges no matter how strong the evidence of irregularities or injustice.
      Over time, Stevens also learned from experience the ways of wielding influence within the Court’s cloistered walls. As the leader of the Court’s four liberals for the past 15 years, Stevens helped forge five- or six-vote majorities that guaranteed rights for Guantanamo detainees, preserved affirmative action in higher education, barred capital punishment for mentally retarded or juvenile offenders, and protected gay rights in the bedroom and in the political process. He also dissented eloquently when the fortified conservative majority under Chief Justice John G. Roberts Jr. slid around precedents to limit racial diversity in public schools and grant corporations unlimited spending rights in election campaigns.
      In looking for the next justice, President Obama said he would be looking for attributes he identified in Stevens: independence, integrity, and “a fierce dedication to the rule of law.” And the president added one more: “a keen understanding of how the law affects the daily lives of the American people.” For that, the next justice must do what Stevens did himself: learn on the job.