The Humane Legacy of John Paul Stevens
By Jeffrey Toobin, The New Yorker
17 July 19
John Paul Stevens, who served on the Supreme Court from 1975 to 2010 and
died Tuesday, at the age of ninety-nine, belonged to a vanished tradition on
the Court and in American life: moderate Republicanism. By the time he left
the Court, during the tenure of John Roberts as Chief Justice, Stevens was
the senior member of the Courts liberal wingwhich was evidence, mostly, of
how far the Court turned to the right during his long tenure.
Stevens was appointed to the Court by Gerald Ford, who also looks today like
a representative of a vanished strain within the G.O.P. Stevenss and Fords
views in the nineteen-seventies were roughly in line with those of moderate
Republicans on the Court, such as Potter Stewart and Harry Blackmun. Like
them, Stevens supported abortion rights, some forms of affirmative action
(especially in university admissions), and limits on Presidential power.
These were once mainstream views among leading Republicansand they are
still supported by most Americansbut the election of Ronald Reagan in 1980
began a transformation of the Party and of the Supreme Court.
Stevens kept a low public profile for most of his time on the Court, but he
was always a canny behind-the-scenes strategist, working with frequent (but
not constant) allies like Sandra Day OConnor and Anthony Kennedy to
preserve fragile majorities on such issues as abortion and the treatment of
the detainees at Guantánamo. Stevens frequently duelled with his ideological
(and temperamental) opposite, Antonin Scalia, who won many of the biggest
battles between them. Unlike Scalia, Stevens was invariably courteous, even
in defeat. But the most famous words that Stevens wrote on the Court came
from his rightly indignant dissenting opinion in Bush v. Gore. In response
to his colleagues decision to shut down the recount of votes in Florida,
and thus award the 2000 Presidential election to George W. Bush, Stevens
wrote, Although we may never know with complete certainty the identity of
the winner of this years Presidential election, the identity of the loser
is perfectly clear. It is the Nations confidence in the judge as an
impartial guardian of the rule of law.
It wasnt just the Republican Party that evolved during Stevenss
thirty-four years on the Court (the third-longest tenure in history).
Stevens moved left on some issues, especially the death penalty, which he
came to see as an institution fatally at variance with the nations legal
traditions. (Blackmun had reached the same conclusion, a few years earlier.)
Still, its clear that the Republican Party changed more than Stevens did.
The party of Donald Trumpand of Neil Gorsuch and Brett Kavanaugh, his
appointees to the Courtshares almost nothing with the humane ideological
home of John Paul Stevens.
Trump is not a deep thinker about legal issues, but he understood politics
well enough to know that he could prove himself to the right-wing base of
his adopted party by embracing its extremist agenda for the Supreme Court.
This commitment remains the core of his appeal to his party. In fact if not
in words, Trump and his appointees are dedicated to overturning virtually
everything that Stevens stood for as a Justice: equal rights for women,
including the right to choose abortion; civil rights for gay people and for
racial minorities, especially concerning the right to vote; a sensible
understanding of the right to regulate guns under the Second Amendment
(which Stevens, in retirement, called for repealing); separation of church
and state; reasonable limits on the power of the Presidency.
Before his retirement, Stevens was one of the last veterans of the Second
World War still active in a prominent public position. His record of public
service, like that of so many of his colleagues in the armed forces,
continued long after the war. Remarkably, too, Stevens wrote three books,
including a recent memoir, after he retired from the Court, at the age of
ninety. But his death is more than just the vanishing of a generational
landmark; its his ideology, his understanding of the Constitution, thats
disappearing, too. And thats the gravest loss to the country.
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