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By Newsweek Editors
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Amid rampant speculation about the future of the Supreme Court, the nation's most-influential and least-appreciated justice, John Paul Stevens, quietly turned 85 last month.
After nearly 30 years on the court, John Paul Stevens remains one of the country's least-known justices. With his bow-tied, Midwestern demeanor and perpetual air of genial bemusement, he is the quintessential nice guy, the sort you'd bump into on an airplane or at the corner store. He loves to tell of moving to Washington, and, on a bank application, listing "Justice" as his occupation. The skeptical bank clerk replied, "OK, last week, I had a guy who said 'Peace'."
Although few may recognize him, Stevens is one of the nation's great justices. His contributions to American law and society are enormous. On every major issue of our time, his voice and mind have had a profound impact. Frequently starting from the perch of a lonely dissent or quirky concurrence, his analyses often have won the day, and, even when they have not, they frequently have framed the terms of debate.
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As a former law clerk to Justice Stevens, I am far from impartial. But a dispassionate appraisal of Stevens's record on the court unmistakably demonstrates the quiet, overwhelming dominance he has displayed. There is a lot of talk about the Rehnquist Court--and sometimes even of the O'Connor Court because of the swing vote employed by Justice Sandra Day O'Connor. But what we actually have seen, on many issues, is the emergence of the Stevens Court.
When the Supreme Court struck down a criminal ban on gay consensual sex two years ago, the court relied heavily on Justice Stevens's previous vigorous dissent from a decision upholding a criminal anti-gay law 17 years earlier. The court's opinion said that Stevens had been correct, and that his analysis now "should control." Just weeks ago, when the Supreme Court struck down capital punishment for those under 18, it adopted the position of an earlier dissent that Stevens had joined. And, three years ago, when the court invalidated executions for the mentally retarded, it likewise heeded the position outlined in an earlier Stevens dissent--this time in a new opinion for the court by Stevens himself.
Stevens has written a wide range of landmark opinions, which cover every major area of the court's jurisprudence. A few examples give a flavor. In last year's historic case about detention at Guantanamo, it was Stevens who wrote the opinion holding that the detainees have a right to bring claims in federal court. Stevens coauthored the watershed opinion upholding the McCain-Feingold campaign-finance-reform act--sweet vindication for his long-held view that "money is property; it is not speech." Early in the Internet era, Stevens crafted the seminal First Amendment opinion rejecting a ban on "indecent" speech in cyberspace, an opinion now hailed as the "Magna Carta" of the Web. His decision for a 5-4 court in 1984 rejected a copyright challenge to the videotape recorder, opening the door to explosive technological change. His opinion in that case now is at the center of the court's pending case on peer-to-peer digital technology.
Stevens's views have not always carried the day. But, even when they have not, they have generated a major impact. Stevens's dissent in Bush v. Gore--and his famous comment that the clear "loser" of the election was the public faith in the judiciary's role as an impartial arbiter--was the unforgettable coda for a remarkable moment.
Stevens has been on the losing side of the court's opinions providing broad immunity to state governments and imposing new limits on congressional power. But, even in these areas, he has continued to eke out occasional victories, such as his opinion last year providing that states could be sued for failing to provide the disabled with adequate access to courthouses. As the court has moved in the direction of permitting greater government support for religion, Stevens has been its clearest advocate for the continuation of a high wall between church and state. And Stevens's dissent from a decision holding that police may deceive lawyers about the questioning of suspects became a rallying cry for state courts reaching a contrary conclusion under state law.
Stevens is not easily pigeonholed with a convenient bumper-sticker analysis. Early in his career, he often was labeled a "maverick." Now he is frequently described as the "leader of the court's liberal bloc." Neither description quite captures him. His clear thinking and original approach frequently have produced a "third way" on the court. His appeal is to reason, not to emotion. His searing analysis has lighted a path on countless issues that will be at the center of Supreme Court life for decades. As a justice, and as a man, there is greatness in that example, and in that record.
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