Amicus With Dahlia Lithwick | Law, Justice, and the Courts

Episode: The Clerk’s Eye View of Justice John Paul Stevens

Date: September 14, 2019
Host: Dahlia Lithwick
Guests: Sonya West and Jamal Greene — former Supreme Court clerks for Justice Stevens

Overview

This episode serves as a reflective memorial to Justice John Paul Stevens, who passed away in July 2019 at age 99. Dahlia Lithwick is joined by two of Stevens’ former law clerks, Sonya West and Jamal Greene, to discuss his personal and professional legacy, exploring how his humility, old-school values, and approach to judging shaped the Supreme Court and beyond. Together, they analyze Stevens’ jurisprudence, personality, and transformation over a 35-year tenure on the Court, offering unique “clerk’s-eye” insights into what made Justice Stevens a singular figure in American judicial history.

Key Discussion Points & Insights

1. Justice Stevens’ Background and Formative Influences

Timestamp: 05:42–11:27

• Family Hardships and Privilege:
  Stevens’ early exposure to both affluence and drastic reversal — his father's wrongful conviction for embezzlement and subsequent exoneration — shaped his empathy and skepticism toward unchecked state power.

  “He saw firsthand how the criminal justice system… can make a mistake, but also how it has the power to correct that mistake.” – Sonya West (06:00)

• Military Service:
  Only sitting justice to have served in the military (Navy codebreaker, WWII). His patriotism and cosmopolitan experience influenced his approach to the law.

  “He was someone who saw a lot of the world…He wasn’t prone to grand statements about the law. He kind of took things a case at a time and looked for the kind of simple justice in each case.” – Jamal Greene (10:32)

2. Jurisprudence: Case-by-Case Empathy and Judicial Humility

Timestamp: 11:27–17:29

• Texas v. Johnson (Flag Burning Case):
  Stevens famously dissented, revealing both his deep patriotism and faith in judicial judgment:

  “He had complete confidence that judges could say, ‘No, the flag is different.’” – Sonya West (12:08)

• Judicial Nuance and Confidence in Judging:
  Stevens’ approach wasn’t about following ideological lines but making nuanced calls, trusting appellate judges' capacities for distinction.

• The Loner vs. The Institutionalist: Stevens often described as a maverick, yet was also deferential to institutions and not an iconoclast:

  “He wasn't an iconoclast…you couldn't rely on him as being someone who could be trusted as an institutionalist…He’s just going to go with his gut and his brain, not based on a label.” – Jamal Greene (15:47)

3. Confirmation & Shifting Partisanship

Timestamp: 18:37–20:31

• Stevens was confirmed 98–0 in 1975; such nonpartisan confirmations are now a relic of the past, in part due to changes in political climate and Senate norms.

  “Those days are over. The idea of a nominee that you don’t know who they are — that’s gone, totally gone.” – Dahlia Lithwick (19:32)

4. Kindness, Humility, and Clerk Relationships

Timestamp: 20:31–24:27

• Known for starting his questioning during oral arguments with “May I ask a question?” — a marker of his humility and modesty, even at the Court’s highest echelons.

  “He conveyed to us that he felt like he could learn from us as much as we could learn from him.” – Sonya West (22:20)

• Stevens did his own first drafts of opinions and opted out of the cert pool, reinforcing his hands-on, non-hierarchical approach.

• Quote:

  “He just wanted us to kind of flag ones that he should read himself. And that really does, I think, speak to the humility...” – Jamal Greene (24:58)

5. Emotional Intelligence and the Human Side of Judging

Timestamp: 28:03–31:39

• Memorable Moment: Stevens gently corrected both a lawyer and Justice O’Connor during oral argument, both teaching and diffusing tension with characteristic wit:

  “Your mistake in calling me judge is also made in Article 3 of the Constitution, by the way.” – Justice Stevens [Barnard v. Thorsten] (28:41)

• Stories about Stevens being “freakishly sensitive to dynamics” and empowering those around him, including young clerks and less confident advocates.

6. Stevens’ Evolution: From Centrist to “Liberal Lion”

Timestamp: 31:39–41:07

• Death Penalty:
  Shifted from upholding to condemning capital punishment; exposure to decades of direct appeals (partially from not joining the cert pool and personally reviewing cases) informed his change.

  “He developed a view that this practice actually couldn’t be administered in a fair and rational way.” – Jamal Greene (32:59)

• Stevens insisted he hadn’t moved ideologically; the Court moved around him, exemplifying his core adherence to “judging case by case” rather than to doctrinal camps.

  “He just continued doing his thing…even if people were accusing him of changing sides…” – Sonya West (36:17)

• Trusted other Justices’ good faith even when disagreements were sharp, reinforcing his nonpartisan character.

7. Civility and Collegiality on the Court

Timestamp: 41:07–42:20

• Recurring stories of Stevens’ friendly relationships — especially with Justices Scalia and Thomas — regardless of ideological divides:

  “Disagreeing, which were deep and heartfelt, did not stop him from connecting in this human way with all of his colleagues...” – Sonya West (42:20)

8. Doctrinal Legacies: Guns, Voter ID, Judicial Warnings

Timestamp: 42:20–49:06

• Second Amendment:
  After dissenting in Heller, Stevens went on to argue for outright repeal of the amendment, seeing judicial interpretations of it as dangerous:

  “He associated the Second Amendment with a particular kind of constitutional fanaticism.” – Jamal Greene (43:04)

• Voter ID Law (Crawford v. Marion County):
  Initially upheld Indiana’s strict voter ID law, but later admitted he may have been mistaken as such laws enabled vote suppression.

  “He was always willing to admit errors. And that's because he was always open to reflection and to listening…” – Sonya West (45:38)

• Landmark Dissents:
  Memorable for warnings about confidence in the judiciary — most famously in Bush v. Gore and Citizens United:

  “It is the nation’s confidence in the judge as an impartial guardian of the rule of law.” – Stevens, Bush v. Gore dissent (47:21)

9. Stevens’ Late-Career Stances and Unique Interventions

Timestamp: 49:47–56:45

• Kavanaugh Confirmation:
  Stevens’ uncommon decision to publicly question Judge (now Justice) Kavanaugh’s fitness after his combative confirmation hearing.

  “He has demonstrated a potential bias involving enough potential litigants before the court that he would not be able to perform his full responsibility.” – Justice Stevens, 2018 (54:11)

10. Retirement and Legacy

Timestamp: 56:45–58:52

• Stevens retired partly due to a health scare (mini-stroke during the Citizens United dissent reading) but did not regret leaving the bench, enjoying the freedom of retirement to speak and write more openly.

11. Personal Impact and Enduring Lessons

Timestamp: 58:52–63:13

• Justice Kagan, who succeeded Stevens, told his clerks:

  “You learned about treating people with dignity, with courtesy, with respect and with kindness… putting all your legal talents and gifts towards serving others.” – Justice Elena Kagan (58:52)

• Both West and Greene discuss how Stevens’ model of personal and professional conduct — humility, generosity, respect — remains vital, even as the world seems to turn away from such values.

  “He was a really generous person… And that does show you… how to treat those kinds of [hierarchical] relationships.” – Jamal Greene (60:10) “I just kept finding myself thinking that he would just have utter confidence in all of us… that we are up to these challenges.” – Sonya West (62:07)

Notable Quotes by Timestamps

• On his empathy:

  “He had this uncanny ability to empathize with people who just came from these very different backgrounds…” – Sonya West (07:53)

• On humility:

  “He did not stand on ceremony... he could learn from us as much as we could learn from him.” – Sonya West (22:20)

• On changing his mind:

  “He developed a view that this practice actually couldn’t be administered in a fair and rational way.” – Jamal Greene (33:15, discussing the death penalty)

• On civility:

  “Disagreeing… did not stop him from connecting in this human way with all of his colleagues...” – Sonya West (42:20)

• On judicial impartiality:

  “It is the nation’s confidence in the judge as an impartial guardian of the rule of law.” – Justice Stevens, Bush v. Gore dissent (47:21)

• On his legacy:

  “You learned how to lead a good and honorable life…about treating people with dignity, with courtesy, with respect and with kindness.” – Justice Elena Kagan (58:52)

Timestamps Overview

• 05:42 – Stevens’ formative years and family history
• 10:32 – Military service and its effect on jurisprudence
• 11:27 – Famous cases: Flag burning, First Amendment debates
• 15:47 – Stevens’ maverick vs. institutionalist identity
• 18:37 – Senate confirmation, partisanship shift
• 22:20 – Clerk relationship and Stevens’ humility
• 24:58 – Writing his own drafts, opting out of cert pool
• 28:41 – Notable courtroom wit and emotional intelligence
• 32:59 – Death penalty: How exposure changed his views
• 36:17 – Stevens’ conservatism, court movements
• 42:20 – Collegiality with Justices across ideological divides
• 43:04 – Post-retirement advocacy: Guns, voter ID, and regret
• 47:21 – Landmark dissents: Bush v. Gore, Citizens United
• 54:11 – Speaking out on Kavanaugh’s confirmation
• 56:45 – Reflections on retirement
• 58:52 – Justice Kagan’s remarks at Stevens’ funeral
• 60:10 – Lessons on humility, dignity, and public service

Final Reflections

The episode celebrates Justice John Paul Stevens as a model of humility, independent thinking, and civility, whose approach to the Court and life offers enduring lessons. As former clerk Jamal Greene puts it:

“He was just a fundamentally decent person who trusted other people.” (37:59)

Both guests underscore that even as law and society drift toward partisanship and incivility, Stevens' example — seeing the best in others, admitting error, and acting out humility — remains vital in the pursuit of justice.