In Final Months, Justice Stevens Had Regrets

      Supreme Court justice John Paul Stevens was fondly remembered after his death last week [July 16] as a judge's judge, a generous boss and mentor, and the very embodiment of courtly manners. The outpouring of tributes is an unpleasant reminder, however, of the Court's transformation in the final years of Stevens' long life from a safeguard for liberty and justice into an instrument of the Republican Party's legal and political agenda.
      Stevens aired his own regrets about that development in candid comments when NPR's Nina Totenberg asked him in May whether he thought the current Supreme Court had taken a radical turn to the right. "Yes," Stevens replied. "I really do. I think some of the decisions really are quite wrong and are quite contrary to the public interest."
      Stevens was President Gerald Ford's nominee for the Court based on the recommendation of Edward Levi, the former president of the University of Chicago who served as U.S. attorney general in Ford's accidental presidency. Ford had asked Levi to recommend a candidate who could win confirmation easily based on academic and legal credentials.
      Stevens' credentials were impeccable and, in contrast to most of the Republican nominees in the years since, completely apolitical. The Democratic-controlled Senate confirmed Stevens in a 98-0 vote, within weeks after Ford nominated him. Today, Stevens would have been vetted by the Federalist Society and his name never put forward.
      Stevens arrived at the Court after five years on the federal appeals court in Chicago, his record well regarded and his judicial demeanor and temperament unquestioned. He was a registered Republican and Midwestern conservative with not the slightest hint of an ideological agenda as the successor to the outspoken liberal justice, William O. Douglas.
      In his recently published memoir The Making of a Justice, Stevens stresses the importance as a judge to "learn on the job." And he did. In his first term on the Court, he joined two other centrist justices, Byron White and Potter Stewart, in casting the pivotal votes to allow the resumption of capital punishment four years after the Court had outlawed the death penalty as arbitrary and discriminatory. The ruling in companion cases prohibited mandatory death penalty laws but allowed capital sentencing schemes that gave juries sufficient guidance to guard against arbitrariness.
      Thirty years later, Stevens confessed that the legal experiment he helped launch had failed. Dissenting in an early method-of-execution case, Baze v. Rees (2008), Stevens voted to find the death penalty unconstitutional based on what he described as "my own experience." Stevens said he had concluded that the death penalty amounted to cruel and unusual punishment under the Eighth Amendment because it represented "the pointless and needless execution of life with only marginal contributions to any discernible social or public purpose."
      Stevens also changed his stance on another major issue during his tenure: affirmative action. He voted early in his tenure in Bakke v. Regents (1978) to bar a quota-like admissions system at the University of California-Davis medical school. A quarter-century later, however, Stevens cast a pivotal vote in the 5-4 decision in Grutter v. Bollinger (2003) to uphold a more narrowly tailored use of race in admissions at the University of Michigan law school.
      On and off the bench, Stevens was unfailingly polite, but he was sharply critical in any number of dissenting opinions. He famously complained in Bush v. Gore that the 5-4 decision to cut off the Florida recount prevented the country from ever being sure about who won the 2000 presidential election. A few years later, he dissented from Chief Justice John Roberts' decision in Parents Involved v. Seattle School District (2007) to limit school districts' ability to adopt pupil assignment policies to promote racial balance. In his dissent, he opined that none of the justices on the Court at the time of his appointment would have joined Roberts' opinion.
      Stevens retired from the Court in 2010 at age 90, one of nine justices to serve past that age; he marked his 99th birthday in April during the round of interviews for his memoir, nearly four years after he had become the longest lived justice ever. As noted in this space before, among several other long-serving justices Stevens stands out as having retired of his own accord when he sensed his stamina failing. Douglas was literally forced off the Court by his colleagues in 1975: so too with Stephen Field in 1897 and Oliver Wendell Holmes Jr. in 1931.
      Despite his age, Totenberg found Stevens mentally sharp and physically fit. But he was openly discouraged about the Court's current course. The Court, he remarked, "seems to be more ideological than it has been since the 1930s." The mantra that the justices are judges, not politicians, is "harder and harder to believe," he lamented.
      With the term's most important decisions of the term yet to come, Stevens observed somewhat hopefully that Roberts "occasionally takes a different position from the other Republicans." Asked if there was one takeaway from his book, his third,  Stevens obliged. "The world is changing much faster than I anticipated," he answered. For better or worse, Totenberg asked. "For the worse, I think."