Despite Justice John Paul Stevens’ professed indecision, Supreme Court watchers are nearly certain that the 89-year-old jurist is now in the final few months of his remarkable 34-year tenure on the high court. Even if the oddsmakers prove to be wrong, one can reflect now on Stevens’ strengths as a justice: hard work, careful analysis, and judicious decision-making free of ideological cant.
Stevens touched off the speculation about his possible retirement in the fall by hiring for the next term only one law clerk, the number allowed a retired justice, instead of the normal complement of four. Now, in an unusual round of interviews, Stevens has told the New Yorker, the New York Times, and the Washington Post that he will definitely retire during President Obama’s time in the White House and will decide this month, April, whether to leave at the end of the current term this summer.
Two weeks from his 90th birthday (April 20), Stevens maintains a regimen of work and exercise that would be challenging for men decades younger. Alone among the nine justices, he writes the first draft of all his opinions. He swims daily and plays singles tennis three times a week, though he conceded to the Times’s Adam Liptak that his game “isn’t quite as good as it used to be.”
In a term that generally is off to a slow start, Stevens came out last week [March 30 and 31] with his first two majority opinions for the year. Neither one drew much attention, but they exemplify Stevens’ fidelity to the principle that Chief Justice John G. Roberts Jr. laid out in his confirmation hearing: the vision of a judge who only calls balls and strikes and leaves the rules of the game to others.
In the first of the decisions, Graham County Soil and Water District v. United States ex rel. Wilson, the Court had to construe a somewhat recent amendment to the federal False Claims Act. That Civil War-era law allows private citizens to file so called qui tam suits to recover money the federal government lost because of fraud by government contractors or others. The private citizen shares any proceeds with the government.
Specifically at issue was a 1986 amendment known as the public disclosure bar that generally prohibits qui tam suits based on information already publicly disclosed. In effect, the amendment seeks to limit the potentially lucrative litigation to true “whistleblowers” rather than opportunistic plaintiffs who learn of fraud against the government from an already public source.
The amendment applies to information already publicized in court proceedings, in the news media, or in “congressional, administrative, or Government Accounting Office [sic]” reports or investigations. The question in the case was whether “administrative” referred only to federal agencies or encompassed investigations by state and local agencies as well.
The “liberal” position in the case might be thought of as limiting the scope of the provision so as to promote more litigation. Over the dissent of two liberal colleagues, Stevens came out the other way, in a 21-page opinion joined by justices spanning the ideological spectrum. In terms of judicial craftsmanship, the opinion’s strength lies in Stevens’ careful reasoning from a simplistic application of a well-known maxim of statutory construction to a more thoroughgoing analysis of the provision’s terms and Congress’s intent in passing it.
In his second decision, Padilla v. Kentucky, Stevens spoke for a liberal majority in establishing a new rule that criminal defense attorneys must advise noncitizen clients of the risk of deportation if they plead guilty. Stevens acknowledged that generally lawyers cannot know all the “collateral consequences” of a criminal conviction. But federal immigration law now provides for deportation for a wide range of crimes, including virtually all drug offenses. On that basis, Stevens concluded that the risk of deportation is “an integral part” of the possible penalty for alien. Defense lawyers who fail to address the issue, he said, fall below the standard of “effective assistance of counsel” required by the Sixth Amendment.
The vote in the case was 7-2, with two of the justices Roberts and Samuel A. Alito Jr. concurring in the result but arguing for a narrower ruling. Alito argued that the lawyer in the case made a mistake by telling the defendant he had no reason to worry about his immigration status, but that lawyers had no affirmative obligation to address immigration matters. That approach, Stevens responded, could encourage defense lawyers to keep their clients in the dark even if the risk of deportation was crystal-clear.
In dissent, Justice Antonin Scalia argued against establishing a constitutional rule on the subject, specifically warning of the risk of a flood of what he called “Padilla warning” complaints. Stevens answered that criticism by noting the lack of a flood of ineffective-assistance claims since the Court opened the door to such cases a quarter-century ago.
Neither of those decisions will be listed among Stevens’ major opinions in the news coverage after he retires. But they show him to be a “judge’s judge,” scrupulous in analyzing any issue from all sides. In his telling, Stevens is doing exactly that in weighing a possible retirement. “There are still pros and cons to be considered,” he told Liptak.