← Amicus With Dahlia Lithwick | Law, justice, and the courts
Amicus With Dahlia Lithwick | Law, justice, and the courts
The Clerk’s Eye View of Justice John Paul Stevens
01:05:35
Remembering the late Supreme Court justice with Professors Sonja West and Jamal Greene.
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- [00:05]
Jamal Greene
It's really a statement about our times. I think that we tend to associate being a kind of eccentric loner with not being predictable in a partisan or ideological sense.
- [00:18]
Dahlia Lithwick
May I ask it what may be an awfully elementary and stupid question?
- [00:22]
Sonya West
One of the ways you saw his humility the most was how when he interacted with us, he just really conveyed to us that he felt like he could learn from us as much as we could could learn from him.
- [00:38]
Dahlia Lithwick
Hi, and welcome to Amicus, Slate's podcast about the courts, the Supreme Court and the law. I'm Dahlia Lithwick and I cover those things for Slate. And this week we wanted to bring you our promised episode memorializing Justice John Paul Stevens, who served for 35 years on the Supreme Court and died on July 16 at the age of 99 after suffering a stroke. Now, before we get to Justice Stevens, let's note that we are two weeks and change away from the start of the 2019 term, which we will preview in depth next show with Dean Erwin Chemerinsky. And although the court is not yet formally in session, this week the justices handed down a surprise 7 to 2 decision to allow President Trump's asylum ban to go forward. That's the ban that prohibits any migrants who have resided in or traveled through third countries from seeking asylum in the United States. So the ban will be allowed to stay in effect while this case is decided in the lower courts. This decision, which was not explained by the justices, lifted a lower court stay of the policy. And Justice Sonia Sotomayor, writing for herself and Ruth Bader Ginsburg, issued a very stinging dissent, writing, quote, granting a stay pending appeal should be an extraordinary act. Unfortunately, it appears the government has treated this except mechanism as a new normal. Historically, the government has made this kind of request rarely. Now it does so reflexively. Oh, and then she quoted friend of Slate, Steve Vladek. On today's show, as promised, we wanted to spend some time talking deeply and reflectively to people who clerked for Justice John Paul Stevens. Stevens, who retired in 2010 at the age of 90, was the second oldest, third longest serving justice ever to sit on the court. He also somehow migrated from being a pretty reliable centrist Republican jurist at the start of his career to the quiet leader of its liberal wing by the time he retired. Something that I want to try to understand later on in the show. But above all things, Stevens was a man who prized what I can only characterize as these old school values of understatement, humility, respectful disagreement, civility, patriotism that in some ways are unique to the greatest generation. When he died, I said on this show that he always somehow managed to surround himself with law clerks who embodied some of those qualities themselves. And I'm delighted to welcome two of them to the show today. I should note that today's show coincides with National Constitution Day, which this year will be marked on Tuesday, September 17th. With us today is Sonya West. She's Otis Brumby Distinguished professor of First Amendment Law at the University of Georgia School of Law, where she focuses on issues in involving the First Amendment and the U.S. supreme Court. Her research appears in legal journals such as Harvard Law Review, the UCLA Law Review, the California Law Review, and she clerked for Justice Stevens in the 1999-2000 term. She also served as one of the honorary pallbearers at his funeral in July. Jamal Green is the Dwight professor of Law at Columbia Law School. His scholarship focuses on the structure of legal and constitutional argument. Greene is the author of more than 30 law review article. He's a frequent media commentator on the Supreme Court and constitutional law. Jamal served as law clerk to Justice John Paul Stevens in the 2006, 2007 term. So Sonia and Jamal, welcome to the podcast. Thank you for making a little bit of time to reminisce a few months later about Justice John Paul Stevens.
- [04:33]
Jamal Greene
Thank you. Very good to be here.
- [04:34]
Sonya West
Thank you so much for having me.
- [04:35]
Dahlia Lithwick
Do either of you want to dispute the fact that the Stevens clerks were uniformly incredibly nice people?
- [04:44]
Jamal Greene
I take the fifth. I was gonna say they're definitely mostly nice people.
- [04:49]
Dahlia Lithwick
They are mostly nice people. Without naming names, maybe we can just start with the biography. I think people probably know the general outlines, but maybe we'll pan back in review because he really was from an era that I think most of us just read about in books. Justice Stevens was born in 1920 in Chicago to a prosperous family that survived financial ruin. In the 1930s, he watched his father, Ernest Stevens, arrested on charges that he and two other family members had embezzled funds to cover losses at their hotel. Sonia, in your tribute, you wrote that quote in the lobby of his family's downtown Chicago hotel, the young John Stevens crossed paths with the likes of Amelia Earhart and Charles Lindbergh. Can you talk a little bit about how these brushes with both great wealth and privilege and then great loss and near ruin may have affected his worldview?
- [05:42]
Sonya West
I think there are ways that some of these key moments in Justice Stevens childhood and how they might have affected him, affected him are both, you know, predictable in some ways and also in other Ways really just utterly surprising. So you mentioned how his father was convicted of embezzling. It was more than a million dollars. And that conviction went up on appeal and was overturned by an appellate court who said that there was not a scintilla of evidence that his father had committed a crime and that rather, while he might have had some bad judgment, he was acting with good intention in trying to save the hotel. So Justice Stevens, as a small child, saw firsthand how the criminal justice system, how it can make a mistake, but also how it has the power to correct that mistake. He also saw how the toll of something like this, the toll it can take on his entire family, because while those charges were pending, his grandfather died of what they say was a stress induced stroke and his uncle fell into a severe depression and ended up committing suicide. So I think when you look at that part of his life, it's just completely not surprising that he would eventually become a justice who was very protective of the rights of criminal defendants and very empathetic to the power of the criminal justice system system and the importance of appellate judges. But there was this other way where his sort of childhood, you know, does not seem predictive of the justice he turned out to become. Because, you know, at least on paper, he grew up in a lot of the ways with basically every privilege. You know, he had great wealth at least, you know, for some time. He was white, Protestant, you know, straight, able bodied, you know, man. Right. He just had. He checked all the boxes. He had it all. And yet nonetheless, somehow he grew into this justice who just had this absolutely uncanny ability to empathize with people who just came from these very different backgrounds than his. He just, he had this ability to, you know, see out of the eyes of people from whom the world looked very different than, you know, the world he inhabited.
- [07:54]
Dahlia Lithwick
Jamal, do you have any sort of thoughts on this, this point that I think Sonia made? I mean, this is a guy who wore a bow tie. You know, he was in some sense every privileged white guy. And yet he really did have this capacious ability to, I don't know if it was, admit that he didn't know what he didn't know, or to imagine himself into the shoes of someone else. But it is kind of an improbable quality, especially in someone from that time who could have swan through life just knowing that he knew everything.
- [08:25]
Jamal Greene
Yeah, I think it's. I completely agree with what Sonya says. It's, I think, pretty hard to predict just based on biography, that someone like Justice Stevens turns into the really nice really sweet, really empathetic person that he very clearly was. I mean, sometimes a person is just a nice person, and you don't know where that comes from. I do think there is something to the fact that he was someone who didn't trust the power of the state. And maybe part of that comes from growing up in Chicago in a place where sort of everyone is kind of corrupt. And part of. Part of that is feeling like his family didn't get a fair shake from the government. I think part of that is he was one of the lawyers investigating some corruption in the Illinois court system before he became a judge. And so he was sort of front and center with power and how power can corrupt people and how power can really put someone in their place. And so, again, I don't think you could predict that he was the mensch that he was. But. But there are parts of his biography that make you understand the perspective of realizing that the little guy is someone who. Little guy or gal is someone who might have a story to tell.
- [09:44]
Dahlia Lithwick
It's also, I think, just hard to imagine that this is a person who lives through the Jazz Age. He lives through Prohibition. He's famously in the stands at Wrigley Field when Babe Ruth calls his shot in the 1932 World Series. It really feels like he is of another time altogether. And he's the last sitting justice to have ever served in the military. He signs up in the Navy. He serves as a code breaker in World War II, later awarded a Bronze Star. And I wonder, Jamal, just in terms of. I know you're completely right that we can't map biography onto who he becomes entirely, but how his military service, how his time in the military and the way he thought about citizenship may have inflected on the. The doctrine or the person or the jurist that he became.
- [10:32]
Jamal Greene
Well, I do think he's someone who saw a lot of the world, and part of that is just coming from privilege. And you're privileged to be meeting Amelia Earhart in a hotel lobby and privileged to be a very successful lawyer and so forth, but he was from a cosmopolitan area. He served in the military, as you mentioned, with distinction. He was a lawyer, right? He wasn't just someone who served in the government and was sort of surrounded by the same people all the time. So he is someone who got a really kind of cosmopolitan education. And I think that that showed through in the kind of person he was and his approach to the law as well. I mean, he wasn't someone who was 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.
- [11:27]
Dahlia Lithwick
And Sonia, I know that the knock on Justice Stevens has always been, you know, that one of the famous cases that he, quote, got wrong for First Amendment purposes, which is what you think about all the time, is the flag burning case. This is Texas V. Johnson, the 1989 case that overturned a Texas law making burning an American flag a crime. And he famously dissents in this case. And I think that the pat answer is, well, that's because of his military service. He just saw the flag differently and he couldn't, regardless of his First Amendment chops, he just couldn't get there on flag burning. Is it more complicated than that or is it just this is a guy who served in the flag meant too much to him.
- [12:08]
Sonya West
Justice Stevens had a lot of confidence in judging, judging as a profession and judging, you know, as a duty and judging as an art. And so you see in some of these cases, and I think that dissent in the flag burning case is a great example where a lot of the argument against, you know, having this one thing, this one symbol that the government is going to protect and not allow people to destroy because it's unique in its meaning, was a slippery slope argument, like, oh, well, if it's that, then what about other things that have national importance or patriotic importance? And what about what's going to happen here? And he had complete confidence that judges could say, no, the flag is different. We're going to have just this one thing. And it's different for a reason. And so I do think it has that patriot military experience informing his decision. But it also comes with this idea that he trusts judges to be able to say, look at the flag and say it is unique. It has a unique importance to Americans, it plays a unique role, it has a unique history. And we aren't going to be burning down, you know, the entire thing if we just say this one item is off limits. So I think it definitely strives from this sense of duty, this sense of patriotism. But it still is in line with a lot of the way he saw the law and in First Amendment law.
- [13:32]
Jamal Greene
In particular, just to follow up on that. And very much in the same vein, there's a well known case that Sonia will know involving regulating porn in a theater. And Justice Stevens has this opinion where he says, you know, it's not that this doesn't get covered by the First Amendment, but, you know, it's not the same as, you know, kind of core political speech and he kind of famously says, you know, no one marches their son or daughter off to war to protect, you know, the right to show specified sexual activities on a theater screen. And that was just his confidence in the fact that a judge can make judgments about how far the Constitution reaches. And I think it's really the same kind of impulse in Texas vs. Johnson, even if many people on his sort of ideological side might disagree with him.
- [14:15]
Sonya West
I'd just like to point out. Could everybody. One thing about the case Jamal was just talking about one of my favorite parts about the line he just quoted about how no one marches their son or daughter off to war. He wrote that in the mid-70s. He threw in daughter about marching. Marching off to war at a time when that certainly wasn't how we viewed women's roles. That's off the topic here, but it's always been one of my favorite parts, actually, about that line.
- [14:39]
Dahlia Lithwick
No, it's incredibly important. I guess this dovetails into this overarching question that I have for both of you about Justice Stevens, which is, you know, I read all the tributes, including yours, and it's hard to reconcile the language of maverick and loner and a guy who trusts his own judgment and is willing to go it alone with all the ways that he was, in a profound sense, an institutionalist, you know, a creature of his family, his schools, the law firm he worked at later comes onto the bench. I mean, this is not a person who comes across as iconoclastic. And I would venture to guess one of the reasons his confirmation goes so easily is that he is such a creature of the institutions that make the Senate and the courts very comfortable. Can you help me understand how somebody who is always characterized as a loner and a maverick is also very, very, very much a creature of great deference to the institutions that surrounded him and brought him up.
- [15:47]
Jamal Greene
It's really a statement about our times. I think that we tend to associate being a kind of eccentric loner with not being predictable in a partisan or ideological sense. Right. So I think a lot of what he was very easily confirmed in 1975, in about three weeks, five minutes of argument before a 61 seat Democratic majority in the Senate, even though he was a Republican nominee, in part because he wasn't really someone who could be relied on as a partisan vote. He, as I mentioned before, wasn't a government lawyer. He was an antitrust lawyer. Growing up on the 7th Circuit, which is the Court of Appeals, where he sat before he was on the Supreme Court. He kind of developed a reputation as someone who just kind of exercised his judgment. And as you say, Dalia, he wasn't an iconoclast, right? So he wasn't some kind of long haired hippie or something. And so when people call him a maverick, what they really mean to be saying when they say that is that, you know, you couldn't just sort of say, he's in this column or that column and that's where he's going to go. You couldn't rely on his vote, which doesn't mean you couldn't rely on him as being someone who can be trusted as an institutionalist or was going to exercise his judgment. It meant the opposite of that, which is he's just going to go with his gut and his brain and not really based on a label that you can attach to the case or to the litigants.
- [17:27]
Dahlia Lithwick
Sonia, thoughts on the same question?
- [17:30]
Sonya West
I completely agree. I mean, when I think about Justice Stevens, I often really think about the very deep sense I think he had of duty, of duty to his country and to the Constitution and, you know, to other people. And so I think what he learned from his past, as you talked about this sort of institutionalist past and his time at the military, you know, was that, you know, he had this duty that he needed to fulfill. And when he was a judge, that duty was to say what he believed. And believe me, there's no doubt he. He definitely preferred it when other people saw things the same way he did and agreed with him. But, you know, if. If they didn't, then he felt like it was his job and his duty to, you know, do the courageous thing and say it alone. So I think he. He was a maverick in that he felt it was his job to say how a case is supposed to come out and to stand alone, if that's what was required.
- [18:38]
Dahlia Lithwick
So I'm hearing two of you say something interesting. Jamal, you just said, and you wrote it in your Times piece, this is a guy who's confirmed 98. 0 just in a heartbeat, in part because nobody knows quite what he is. And Sonia, you're kind of saying the same thing, which is at the time, nobody knows quite what he is because he just doesn't fit into any coherent, predictable ideological box. And I wonder if. And you flick at this in your Times piece, Jamal. But those days are over. Those days are, regardless of what we can call the Senate, polarized or we can say dysfunctional. But the idea of a nominee that you don't know who they are, that's gone, totally gone.
- [19:32]
Jamal Greene
I think part of it with him was just the particular politics of his appointment. It was right before presidential election and Gerald Ford was a pretty weak president and was trying to not make too much of a splash with his Supreme Court appointment. But part of it really is just the times in which we live. I mean, there were several other unanimous and pretty easy nominations after his Justice o' Connor only got one no vote, and that was from a Republican and Justice Scalia was unanimously confirmed. So he is a throwback in so many ways. But I think, you know, when you put that together with his personality, with the bow tie, as you mentioned, and with his manner on the page, it may have seemed as though he lined up with a lot of so called liberal outcomes. But in conversation, you really could not detect, even in close contact with him, much of a partisan bone in his body. I couldn't even tell you who he voted for, although I have some guesses.
- [20:32]
Dahlia Lithwick
Sonia the question of manner is the one that I come back to most often when I think about Justice Stevens. And I think the hallmark characteristic that always comes up is this idea of humility that in an era toward the end of his career of the rock star justice, you know, who's on Fox and on CNN and is hocking a book, and he's always got a kind of brand that they're putting out there. Justice Stevens, to the extent he had any brand at all, it was modesty, I think, and perhaps most famously, and we've talked about this before, but everybody remarked on his tendency to ask questions at oral argument with this famous may I ask a question? Line. So let's listen for one little second to this is how after 10 years of covering Justice Stevens on the court, this is what I most often heard he would open with.
- [21:23]
May I ask a question? May I ask it what may be an awfully elementary and stupid question. Of course, you are saying, and this.
- [21:30]
Jamal Greene
Has been the law.
- [21:31]
Dahlia Lithwick
Can I ask one question, please? It's critical to me to understand the effect of the judgment. And you said there are six reasons why it's not an ordinary judgment. I really would like to hear what those reasons are without interruption from all of my colleagues.
- [21:49]
Sonya West
I would be happy to provide those.
- [21:50]
Dahlia Lithwick
Justice Stevens, walk me through and we'll start with you. Maybe. Sonia, this complicated humility, only because this is simultaneously a person who wrote all his own first drafts. I think his clerks are jokingly referred to as the most underutilized clerks because he did so much of his own work. So he was, he was both very, very modest, but then he didn't again participate in the cert pool. So, again, help me square the circle here, please.
- [22:21]
Sonya West
I think humility is a really good word to describe Justice Stevens because he definitely was someone who just did not stand on ceremony. In fact, when we were in D.C. for his funeral, a number of clerks were remarking on just how much he would have hated all that fuss. It just being the center, whatever people talking, it was just not where he wanted to be. And he was well known to have spent, you know, a lot of his time in Florida, where he was, you know, just John to a lot of people, sort of the friendly neighbor who was in the bridge club. And he would never bother to correct anybody or, you know, let them know what his day job was. So it really was something that was very true to his personality, not just on the bench, but in all aspects of his life. But I think the practices you mentioned do demonstrate his humility. He wrote his own first drafts because he believed that was the best way to make sure he was reaching the correct outcome. He cared in particular about the facts of the case. He wanted to really grapple the fact with the facts. He wanted to understand the facts and make sure he fully understood the records in the case. And he felt like the best way to do that was to dig in himself and to write out that part of the opinion. And he was even known from time to time that he would go into his office to work on his draft, and he would emerge declaring that he had changed his take in the case and possibly even his vote, because having gone through that process opened his eyes to something knew about the case. But I think as former law clerk, one of the ways you saw his humility the most was how when he interacted with us, he just really conveyed to us that he felt like he could learn from us as much as we could learn from him, which was just ridiculous, but very much an evidence, I think, again, of his humility.
- [24:28]
Dahlia Lithwick
I think Kate Shaw had a really nice quote in one of the tribute pieces where she said that. That it was simultaneously terr and also unbelievably fortifying for a little kid law clerk essentially to be told, like, okay, it's on you, and that he really did trust his clerks immensely. Jamal, I wonder if I just mentioned the cert pool and didn't explain what it was. So maybe explain for a minute what the cert pool is and then what it meant that Justice Stevens opted out.
- [24:58]
Jamal Greene
Sure. The cert pool is a way for the Justices to divide the petitions or the applications for cases to be heard. When I was clerking, it was about 8,000 per year. I think it's roughly the same today. And so it's very hard for any individual justice to review all those petitions. So, of course, the clerks help out. But a practice developed really over the last several decades where all of the clerks who participated in this thing called the cert pool would get on a wheel and just kind of divide the 8,000 petitions among themselves, and they would each write a memo that would be circulated to all the other justices chambers, talking about whether the facts of the case and whether the case should be granted or not. And it was a recommendation. And each individual chambers could then make their own decisions based on what the pool memo said, but they were not the first point of contact. And so Justice Stevens, in not being part of the pool, was saying, you know, I don't want some other Justice's clerks to be the ones to summarize a cert petition for me. I want that to happen in chambers. And in fact, when it did happen in chambers, he didn't really want his own clerks to summarize the petitions either. He just wanted us to kind of flag ones that he should read himself. And that really does, I think, speak to the humility that we were talking about before, which is in any number of practices, including writing his own opinions for the first draft and including not being in the cert pool, including including not getting elaborate memos from his clerks summarizing the cases the Court was going to hear. He wanted to make sure that he was arriving at decisions through his own mental process and not being influenced by other people, recognizing that that really can change your mind. If someone else takes the first whack at something, it influences you. And he wanted to make sure that the decision making was by the person who was confirmed by the Senate and appointed by the President, and not by clerks.
- [27:04]
Dahlia Lithwick
You're both checking me on this humor thing that I'm saying, and I love that you're both saying, no. It is actually the consummate act of humility to say I actually have to make up my own mind. It's the opposite of what I'm thinking of in terms of very controlling or that I can't be a part of a larger cert pool. You're both saying, actually, this is very emblematic of somebody who really felt as though humility requires him to do the.
- [27:32]
Jamal Greene
Work, I would say. So I'm hesitating a little bit because he was not a person who lacked self confidence. Right. He was, you know, when he reached a decision, he was very often quite sure he was right. But that was because he had taken the time to go through the facts, to think it through, to get a first impression that wasn't generated by someone else. Right. And so he was confident in his process, but he wasn't, you know, he didn't think that he was better than other people.
- [28:03]
Dahlia Lithwick
JAMAL I had asked you for a favorite moment from oral argument, and you came up with this kind of obscure exchange from Barnard vs Thorsten. This is argued in January of 1989. Here's Justice O' Connor chiding a lawyer for calling Justices Judge.
- [28:23]
Sonya West
We don't think that it would work. Judge for for several reasons.
- [28:26]
Dahlia Lithwick
First of all, I think we're generally.
- [28:27]
Sonya West
Called Justice I'm sorry, I apologize. Justice o'.
- [28:30]
Jamal Greene
Connor.
- [28:31]
Dahlia Lithwick
And now keep listening, because here's Justice Stevens response.
- [28:36]
Sonya West
It might be alleviated if we had more lawyers who were actually their judge. Justice Excuse me, Justice Stevens, but it cannot be.
- [28:42]
Dahlia Lithwick
Your mistake in calling me judge is also made in Article 3 of the Constitution, by the way.
- [28:46]
Sonya West
I do apologize.
- [28:48]
Dahlia Lithwick
So tell me why, Jamal, why is this one that you pulled for us as something that was representative of something uniquely Stevens? Ish?
- [28:56]
Jamal Greene
Well, I think it's a couple of things about that clip. One is that he's right and that the Constitution doesn't say Justice. It does say Judge when it talks about the Supreme Court. But it's also that he was kind of simultaneously accomplishing a couple of things. He was trying to set the advocate at ease, who was clearly nervous and rattled by having been rebuked by Justice o' Connor and saying, really don't worry about it. But also, it really was a kind of chiding of Justice o' Connor as well, but in the most gentle kind of joking way possible, and recognizing that it's hard to do that directly. He really had a lot of what you might call emotional intelligence. I think he could read a room pretty well. And there are other examples of this, and there's one in his obituary by Linda Greenhouse in the Times where she mentions his anecdote where there's some function the justices are having and one of the female clerks has been asked to hand out drinks or something, and he takes over for her and says, I think it's my turn now. And I think that's just another example of ways in which, as you say, he didn't like anyone kind of being talked down to, but he was also very socially aware in a way that not everyone has that set of skills.
- [30:22]
Dahlia Lithwick
Sonia thoughts on that? I know that you also have lots of stories about Justice Stevens just being like, freakishly sensitive to kind of dynamics in a way that I think so many of the justices sometimes don't necessarily hone in on the most vulnerable person in the room. But he did have kind of an uncanny way of doing that. Right.
- [30:47]
Sonya West
You know, he did. And I love that clip that you played because it was. It is. It's like all of it together. Like, you know, it's kind. It's funny and it's super smart. Right. All in one, just quick exchange. And there's just so much about him. But he did. And it was another way where I think he was a surprise to people. You saw this sort of, you know, reserved Midwesterner who, you know, was the opposite of sort of touchy feely, you know, hippie or whatever of the generation maybe that came after him. And yet, you know, when it mattered, when it mattered to having this ability to figure out, you know, the power imbalance or who needed a lift or who needed, you know, the kind word at the right time. He was really amazing in that way.
- [31:40]
Dahlia Lithwick
And now back to our conversation with Professors Sonya west and Jamal Green, former clerks to Justice John Paul Stevens. Jamal, I want to talk about doctrine a little bit, and I want to start with the death penalty, because it seems to me of a piece with a couple of the places where it's not clear to me whether Stevens changes or the world changes. But he comes onto the court in 1976. He immediately is part of a bloc that votes to reinstate capital punishment after there had been a four year moratorium. And he writes, you know, with the right procedures, we're going to be able to ensure, quote, even handed, rational, consistent imposition of death sentences under law. So he's bullish on reinstating the death penalty, and then he really retreats from that. In 2008, two years before he retires, he announced in a concurrence that, yikes, he now believes the death penalty is unconstitutional. He amplifies that view after he steps down with an essay in the New York Review of Books. So I guess my question for you is, is this one of those areas in which his views changed? Or did the death penalty change? Or did his understanding of the death penalty. I feel like it's reflective of this core question we have about how this essentially centrist Republican becomes a flaming liberal.
- [33:00]
Jamal Greene
Well, I think it's a little bit of both. He does change, I think, in a number of ways during his time on the court. And the Court, of course, moves very, very strongly to the right during his time there as well, on the death penalty itself. You know, I think this is a really good example of what he once called learning on the job. Right. Where he takes over in 1976, the case you referred to, a case called Greg versus Georgia, where he is part of a block that reinstates the death penalty on the ground that there is some way of administering this practice in a clear and rational way. And then he's on the Supreme Court for 30 years, where he's getting not just lots of applications for people to stay their death sentences, where he has to really think carefully about the case, not just lots and lots of actual death cases that the Court is hearing on the merits, but also this practice of not being part of the cert pool, where someone in his chambers is looking at petition after petition after petition after petition very carefully. And over those three decades, he developed a view that this practice actually couldn't be administered in a fair and rational way. So I don't know if you quite call that changing one's mind or rather just updating your views based on facts that are available to you and more available to him as a Supreme Court justice than they might be to the average person.
- [34:28]
Dahlia Lithwick
So that's super interesting. Jamal, I'm hearing you say, I hadn't thought of it before, but part of removing himself from the sirt pool is that he's just exposed to this immense number of Capitol appeals that maybe some of the other justices are just not seeing, and that has to inform the way he comes to think about it.
- [34:48]
Jamal Greene
Yeah, I mean, I'd say in fairness, that capital cases are ones where the other justices are quite likely to pay some attention. But a huge number of cert petitions are prisoners who have some issue, and almost always there's nothing the Court can really do about it. But you really do get a sense of sense of how much injustice there is in the world, even if it's something you can't do something about, having a sense that people are not just sort of making things up, but that it's an unfair world. And if you have a chance to make it more fair, that maybe you should be a little bit more likely to step in and do something about it.
- [35:26]
Dahlia Lithwick
Sonia, I want to ask you again this core question, maybe a different way. Justice Stevens insisted right up until the end that he had never moved, that the Court essentially torqued around him. And Jamal has made this point. He's actually a pretty conservative guy who is trying to do justice case by case, but Ideologically, he really did not think of himself as a liberal. And he told the New York Times in 2007, I don't think of myself as a liberal at all. I'm pretty darn conservative. And so, again, maybe through the lens of the death penalty or not, help us understand how he thought of himself when he really was, by the end of his time on the court, without a doubt, the leader of the court's liberal wing.
- [36:18]
Sonya West
Well, I think he's making an important point. He's completely right in the extent that, as Jamal already said that, that the court shifted dramatically to the right during his time of the bench. I mean, he might have moved a little bit left, too, but mostly you just had this court just shifting, you know, everybody moving several seats down right to the right. He joined a court that had true liberal lions on it, like Brennan and Marshall. And today the center of our Supreme Court is Chief Justice Roberts, who is a very, very conservative justice. So it's really just undeniable to sort of show that change. And I think he's correct to, you know, bring some attention to it. But I agree with Jamal as well that I think he is conservative, you know, and some of his substantive issues we already talk about sort of indecency and protecting the flag or were decisions that were, you know, quite conservative, that he maintained until the end he never reversed on in any way, but also just sort of in other ways in terms of how he approached the law. That he had this deep respect for precedent and for facts and for history and for the role of judges in the bigger structure of the government that is conservative in its own sort of small c way. But I think, to me, the fact that he just continued doing his thing and doing his work and deciding the cases and saying what he thought, even if no one would join with him, even if people were at the time accusing him of changing sides or changing teams and moving this way or that way, and he just kept doing what he does is really just the best example of how he's just the exact.
- [38:00]
Jamal Greene
Opposite of a partisan, just along those lines. I suspect Sonya had many similar experiences when she was clerking for Justice Stevens. But he had this remarkable ability to have complete faith in his colleagues on the court. I mean, when we talk about being a throwback to a different era, he was not at least openly suspicious of his colleagues or thinking that they themselves were ideologues, even though all the rest of us did and all his clerks did. You know, he would come back from conference and there'd be some controversial case, and he'd be on the losing side or in dissent, and he'd say, you know, I bet when I circulate my opinion, maybe Nina will come around, you know, and that seems completely bonkers to people outside of the building. But it was really just his fundamental kind of humanity and his belief in humanity that never really went away. And it might feel a little bit naive at this stage of our collective life, but it really made him. I think you're probably sensing the adoration that his clerks have for him and people who know him had for him comes from he was just a fundamentally decent person who trusted other people.
- [39:18]
Dahlia Lithwick
And I love that as a segue, because I think one of the things that I read in several obituaries was that, darn, if he didn't take his opinions right to Nino Scalia and say, you rough this up. Right. I mean, he was very happy to be challenged. He was very happy to. I mean, this is something that Justice Ginsburg always said about Justice Scalia, is that he made her a better writer, he made her a better thinker. And, you know, yes, he sometimes talked smack and belittled her, but that, in the end of the day, that give and take really, really was something that Justice Stevens valued. And I think. I can't remember where I read that even during Bush v. Gore, when tempers were really high and the clerks would be taking umbrage because Justice Scalia would be poking at Justice Stevens, he just laughed it off. I mean, this was really, whether it's civility or comed or some notion that it's all just for show, at the end of the day, we're friends. He really was all in on that. As a virtue of justices. Right.
- [40:30]
Jamal Greene
I think it was all about the. And this is something that Sonya talked about earlier, all about his job as a Justice. Right. Which is to come to a judgment, bounce ideas off each other, figure out what the right answer is. If you disagree, at the end of the day, publish your dissent or your concurring opinion and re up for the next case. And he never really abandoned that, even as it appeared that the world was becoming really partisan around him, that his job was still to be one of nine people, each of whom he had seemed to have a tremendous amount of respect for.
- [41:08]
Dahlia Lithwick
Sonia, thoughts on that?
- [41:10]
Sonya West
When? The year I was clerking, anyway, the two other justices that we saw in our chambers the most were Justice Scalia and Justice Thomas. You know, Justice Scalia, I think, who often had marched down to, you know, engage in one of his, you know, One of their, you know, sparring debates that they love to have about the law. Just the same way he, you know, Justice Stevens might march down to Nino's office, as he would say, and Justice Thomas, whose chambers at the time, you know, I was there, were right next door to ours, he would be by just to talk, usually about sports with Justice Stevens. They were really the only two sports fans. They would stand around for the longest time talking about football, talking about baseball, laughing. You know, I just have so many memories of just, you know, Justice Thomas, and he has just this hugely booming, guttural laugh. It's just a wonderful, wonderful laugh. And then you'd hear Justice Stevens, who's really much more of a chuckler, I'd say, who would chuckle, and the two of them would just be having a great time. So, you know, absolutely. The idea that disagreeing, which were deep and heartfelt, did not stop him from connecting in this human way with all of his colleagues and I think with all sorts of people he encountered in his life.
- [42:20]
Dahlia Lithwick
Jamal, I want to talk about guns for a minute, because it does seem like an area in which, even after he comes off the bench, having famously dissented in Heller, which is the case where the Second Amendment suddenly has new form, towards the end of his life, he's writing really radical things like let's repeal the Second Amendment outright. You know, he's really going completely rogue on the guns issue. And I wonder if you have some theory for why guns becomes one of the issues long after he leaves the Court, that he's still almost fanatical about the idea that the Court's gotten it wrong.
- [43:04]
Jamal Greene
You know, I think that Justice Stevens would probably say that the rest of the country was going rogue and that he was being completely normal. I think it reflects something about the way he thought about judging, which is very case by case, which is very much. Let's figure out what makes the most sense here. Let's figure out what are the constitutional values at stake here. And those might point in different directions in any individual case. And so the idea that there is some amendment to the Constitution that gives you a kind of unqualified right to. To own dangerous weapons was really, I think, quite anathema to him as someone, maybe partly as someone who grew up in kind of gangland Chicago with his father as a hotel owner, but also just as someone who believed more than anything else in common sense. And so I think he associated the Second Amendment with a particular kind of constitutional fanaticism that that was against everything he believed in. We talked about the First Amendment earlier and how you can make some judgments about when the First Amendment needs to kick in and when it doesn't. And he felt very much the same way about the Second Amendment. And I think just thought that it was kind of the avatar for a kind of ideological constitutionalism run amok.
- [44:28]
Dahlia Lithwick
And Sonia, maybe another good example of what we're describing as humility or at least his willingness to say, I made a mistake. Another one of these issues I think Jamal's identified, the country moves around him and he has to flag it for us. But maybe the best example of him saying, I think I might have been Wrong is this 2008 case where he writes the lead opinion in a case upholding the constitutionality of Indiana's brand new voter ID law. And Justice Souter in dissent says, there's just no evidence of the kind of voter fraud that Indiana is trying to curb. And in the meantime, you are suppressing the vote. Justice Stevens is sanguine about this, and then suddenly in 2013, he tells the Wall Street Journal, maybe he was wrong and maybe Justice Souter was right and that, whoops, sorry about opening the door to vote suppression. Is this another one of those examples of sort of voter ID goes on to become, well, the thing it is today, one of the most democracy suppressing enterprises that he blessed and he regretted it.
- [45:39]
Sonya West
I think he definitely regretted how that case was used and what it was said to have stood for. You know, his actual opinion in that case is actually another great example of this sort of judicial humility that we talked about before, because he, in that case dug into the record, which, you know, apparently sort of the record that they were given based on the findings of, of the lower court judges, didn't quite include all the evidence that he felt would be needed to meet the standard in that case. So he looked very closely at the evidence, he looked very closely at the rhetoric and the facts and thought very seriously about the standard he thought he was supposed to apply. And he just felt like even though he has said that he didn't like these laws personally, he didn't support them as a sort of policy matter. He felt on the law that he had to rule a certain way. So it was that same approach there that he was exercising. But you're right, he looked back on that later and he saw how it was used. He saw that future courts didn't necessarily read all his nuance that he had tried to rely on and realized that Justice Souter was correct and that they needed to look at this more broadly. And look at it, the full picture and the full history there. So, yeah, he was. And he was always willing to admit errors. And that's because he was always open to reflection and to listening and to rethinking and to being convinced until you were always free to try to convince him that he was wrong. Whether you were Justice Scalia or a 23 year old law clerk and you would have an ear, you would get his attention, his full attention, and then he would, you know, decide whether you were right. And if he concluded that he had made a mistake, he would admit it.
- [47:22]
Dahlia Lithwick
It feels like one of the things that Justice Stevens started warning us about, particularly in maybe these two famous dissents, one in bus Bush v. Gore and won in Citizens United in 2010, is that the nation is going to lose confidence in the judiciary. And I'm just going to read a tiny bit of both of these are landmark dissents. But here's the dissent in Bush v. Gore in 2000. The majority opinion can only lend credence to the most cynical appraisal of the work of judges throughout the land. It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. Time will one day heal the wound to that confidence that will be inflicted by today's decision. One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year's presidential election, the identity of the loser is perfectly clear. It is the nation's confidence in the judge as an impartial guardian of the rule of law. Here's his dissent in Citizens United in 2010, essentially five judges were unhappy with the limited nature of the case before us, so they changed their case to give themselves an opportunity to change the law. He was starting to send up a flare, Jamal, about partisan judges. The appearance of bias, the appearance that judges were in the tank for outcomes long before it was cool to send up a flare. And I wonder if you have any kind of great unifying theory of Justice Stevens sense that the Court was becoming broken and that the court was performing a kind of deep partisan rift that was losing the confidence of the electorate long before the rest of us saw it.
- [49:07]
Jamal Greene
Well, I do think he had that impression, at least as to those cases. Whether it was before the rest of us, I'm not sure. It was unusual for justice witnesses to make those kinds of statements, and I think it was unusual for him to make those kinds of statements. So he really just did that in cases that he thought were especially egregious. And I think Bush versus Gore, I think he had a very clear view that the Court was reaching out and reaching out in very directly in partisan ways. And Citizens United, I think, is another one of these examples of the Court not being able to take cases on their facts, to be balanced about cases, to be balanced about the First Amendment, and really taking out of the political process a law that was designed to address certain flaws in that process. And so I think he called it like he saw it. And those were cases that, in his view, were especially egregious. I think his dissenting opinion in the Heller gun case is another one. That's another example of that. And one of his last sort of big opinions, which is his dissenting opinion in a follow up to the Heller case, which was a case about the degree to which the Second Amendment would apply to state and local governments. That's really another one of his landmark opinions where he really is trying to leave as his legacy a view that judges should be exercising their judgment rather than being ideological, not just partisan, but being ideological and not being able to move in response to context.
- [50:48]
Dahlia Lithwick
I love that because it's where we started. I mean, in a sense, we've come full circle in terms of he really felt that at bottom, judges should judge. And when they strayed from that, when he strayed from that, that was problematic. But I think it's such a. It is kind of well done on the spontaneous unified theory. It explains a lot. And I think it leads me inexorably to the question I have for the both of you, which is, is having very clearly been non ideological and nonpartisan and held himself out as somebody who didn't take partisan sides. How do we square that with his decision in last year to take sides in the Brett Kavanaugh confirmation? It was so unlike him in some sense, and also very like him in some sense. After then, Judge Kavanaugh testified and said things that suggested he could not be perfectly neutral. It was Justice Stevens who surprised all of us by coming out and saying, maybe this is not a person who should be on the Supreme Court. And I wonder again if this is aberrational or if this is Stevens very much taking the position, Jamal, that you just took, which is judges should judge. And this is somebody who now seems as though he can't be fair. Sonia, you want to take a crack at that incredibly compound question?
- [52:21]
Sonya West
Yeah, I mean, I agree completely with everything that Jamal said. I think you could even look back to how Justice Stevens was an antitrust lawyer in that he was perfectly fine for the court to have these debates and to have these opinions that he may or may not be on the winning side of, as long as that competition was fair, you know, as long as people were acting honestly and playing by the rules, and then you could trust the outcome. But I think in some of those dissents that you read, he's frustrated because he doesn't feel like that's what's happening. He doesn't feel like what the majority is doing. And he is concerned that he's not the only one who's seeing that, but that the public itself is going to be not sensing sort of fair play, so to speak, on the court in terms of the opinions and therefore that they could trust the outcome. So when you get to Justice Kavanaugh, I think he saw a lot of those same concerns and a lot of concerns that we aren't going to have a process here that we could trust and that this is not how a judge is supposed to act. And I think he also the fact that he was one of the only, you know, of only three living retired justices at the time, that he was in a very unique spot. And in terms of being able to speak out, that the current justices were confined and that they wouldn't be able to talk about their views on this. But anybody else has never been a Supreme Court justice and doesn't really know the job or know what it's like to sit in that chair and wear the robe, but he does. And so I think he felt that he was one of the few people who was free to be able to come out and say that this is important and what I heard in those hearings is not appropriate, that this is an important attribute and to have this sense of fairness and demeanor. And what he showed me, you know, made me think that he doesn't. Doesn't have the right characteristics.
- [54:12]
Dahlia Lithwick
I just want to read the quote so that we're clear what he did and didn't say. He said that Kavanaugh, the way he'd behaved during his confirmation hearings suggest, quote, that he has demonstrated a potential bias involving enough potential litigants before the court that he would not be able to perform his full responsibility. So he was not taking a chip shot at Kavanaugh. He was saying he had displayed an inability to be fair in front of certain litigants. But I guess, Jamal, I want to ask you the same question, maybe a different way, which is simply to say, just in the past week we've had Ruth Bader Ginsburg making speeches about how much she admires and likes Justice Kavanaugh. We've had Sonia Sotomayor explicitly saying at events in the last week or two, we've turned the page. What's past is past. Were all good. There's one story you can tell in which being judicial means we just say, this is fine. And then there's another story, the one that I think Sonia just told, which says that sometimes you have to be a little bit injudicious in order to be judicial. And I'm just wondering why Justice Stevens, at the very, very end of a very long career in which he's so careful, is willing to say, I think that the appearance of bias here will hurt the court, because that's what he's saying.
- [55:31]
Jamal Greene
I don't want to speak for Justice Stevens at all. And I'm sure he had his own thought process that he went through in figuring out exactly how much to say in that circumstance. But it really was quite an extraordinary moment for the country and an extraordinary confirmation hearing. Just. Just to think back to that time. You know, he made his comments not after Justice Kavanaugh's initial hearing, but after the second round, when he came back and was sort of yelling at senators and claiming a conspiracy by the Clintons and other sorts of things. And I don't bring that up to disparage Justice Kavanaugh, who, from all I know, seems to be a perfectly nice person to get along with. But what was on display at that moment was, I think, genuinely shocking. And as Sonia said, not everyone with his stature has the ability to call that out. And I can only guess that he thought that it was his responsibility to say that what he was seeing was not normal. What we were seeing was not. Was not normal. And again, I think that's consistent with. With his reaction to Bush v. Gore as well.
- [56:45]
Dahlia Lithwick
I think one of the last lingering questions I have is we all know he famously retired in part because of the way he read his dissent in Citizens United, and he was stumbling over words. I was in the chamber at the time. I think we were all trying to figure out what was going on. Later, he said he was actually suffering from a mini stroke. So, question for you, Sonia. Do you think that he regretted leaving the court when he did?
- [57:17]
Sonya West
I don't think he does. You know, he was aware of the problem of being an aging justice and knowing when it was time to leave, because it's not a position where there's, you know, it's really easy to be able to get sort of an honest, trustworthy opinion from others about whether you are still doing your job at the level that you should, should be doing it. And so he has said that he actually had an agreement with Justice Souter, that Justice Souter would tell Justice Stevens when he thought it was time to go because they were very close friends. But the problem with that plan was then Justice Souter goes and retires first. And so he's not there anymore to tell Justice Stevens. And so he has said that. So then when he did have the issue that became public with the Citizens United dissent reading, that he decided it was time to retire. But I don't think he regretted it. I mean, he had a 40 year judicial career if you include his time on the 7th Circuit Court of Appeals. And he was 90 years old. And as I said before, too, I think being retired, it gave him this freedom that he hadn't had before. Unlike other justices, he didn't write books when he was on the bench. He didn't give a lot of interviews. But once he left the bench, he was much more free to be able to do that, to talk about what he wanted to talk about, to write about the law in new ways. And I think it seemed that he really enjoyed that period of his life. And while I missed him being on the bench, I'm really glad that he had that time.
- [58:52]
Dahlia Lithwick
Last question for the both of you. At his funeral, you were both in attendance. Justice Kagan, she's the one who inherited his seat, spoke to all the clerks, the Stevens clerks, and said to them, this is essentially what you learned from Justice Stevens, what I learned from him. And she said this. You learned how to lead a good and honorable life. You learned about treating people with dignity, with courtesy, with respect and with kindness. You learned about the importance of putting all your legal talents and gifts towards serving others. And I think I want to ask, and we can start with you, Jamal. It feels like another one of those anachronistic values, right? This is a lovely value from somebody who lived in a different time, who judged in a different time, who served in the military in a different time. How does that land with you in a moment, as you've said, where the whole country seems to have gone rogue, not just on guns, but on a lot of these values. How do you repurpose that call and that task in a time where kindness and courtesy and respect feels like it's not a part of what certainly what any of us does, but what jurists do anymore?
- [60:11]
Jamal Greene
Well, I think I'd say a couple of things. One is that as we've talked about he wasn't someone who was unable to call out when he was not seeing kindness and respect and civility and. And good faith. And he picked his spots for doing so. But being a humble person and being a respectful person doesn't mean that you have to put on blinders to what's around you. At the same time, he was a really generous person. I think that's the word I would use, which is to say you always had a shot to show him that you were an honorable person. He wasn't bigoted or biased towards people, at least not that I could tell. And one thing about his chambers in general, it was a very horizontal relationship. I mean, we obviously all knew who the boss was, but the way he would talk about cases, you'd sit down, he'd sit down in a chair, you'd sit down next to him, and you would just chat about it. It wasn't like you gave him a document and he was reviewing your work. Right. You were just talking like two people who were learned in the law. One of those people was much, much, much more learned, but he didn't act that way. And I think that does show you, as you move on in life and are in a kind of hierarchical relationship with other people, how to treat those kinds of relationships. So I learned a tremendous amount from him, and I think the country could at least as well.
- [61:48]
Dahlia Lithwick
Sonia, same question. How do you repurpose these lifelong values about kindness and empathy and humility in an era where it just feels as though it is not a part of, certainly the judicial project and maybe the legal project as well?
- [62:08]
Sonya West
Yeah, I've been reflecting on that a lot, you know, ever since he died, in part because I think sometimes it's been hard to explain to people how I spent a year in this man's employ and how it could have such a profound effect on me. But I think it's exactly for these reasons we're talking about just how he modeled this way of interacting with people, of thinking about the world, of having faith that he had in us and in everyone he met, that you had these abilities and you had this worth, and it's so empowering. And. And so while I find myself really sad to be going forward in a world without Justice Stevens, I just kept finding myself thinking that he would just have the utter confidence in all of us that we are mostly all good, profoundly good in humanity, and that we are up to these challenges and we are up to the task of finding our way forward. He knows that we can do this, and he. He would not be hesitant about that at all.
- [63:13]
Dahlia Lithwick
Sonya west is Otis Brumby Distinguished professor of First Amendment Law at the University of Georgia School of Law, where she focuses on issues involving the First Amendment and the Supreme Court. Her research appears in top legal journals including the Harvard Law Review, UCLA Law Review, and California Law Review, and she clerked for Justice Stevens in the 19992000 term. Jamal Green is the Dwight professor of Law at Columbia Law School. His scholarship focuses on the structure of legal and constitutional argument. He's the author of more than 30 law review articles, is a frequent meeting a commentator on the Supreme Court and constitutional law, and served as law clerk to John Paul Stevens in the 2006-2007 term. To the both of you, I cannot thank you enough for helping all of us understand someone who I know was really a formative influence on the three of us. So thank you for being here.
- [64:05]
Jamal Greene
Thank you, thank you, Dr.
- [64:06]
Dahlia Lithwick
Thank you so much for listening to Amicus. But I'm wondering, could you be enjoying this and all the other fabulous Slate shows a little more like by binging episodes without ever listening to a commercial? By getting special bonus content from your most favorite shows? If you join our membership program, Slate plus, all this and more awaits you. It's only $35 for your first year and you can sign up for free for two weeks to check it out. And that's not all. By signing up for Slate plus, you will be supporting this show and all of our journalism here at Slate. We know you value our work and our coverage and we truly value your support. Sign up for Slate plus and help secure Slate's future. To learn more to begin your free two week trial, go to slate.com amicusplus and that is a wrap for this episode of Amicus. Thank you so much for listening. If you would like to get in touch, our email is amicuslate.com and you can find us@facebook.com amicuspodcast Today's show was produced by Sarah Burningham. Gabriel Roth is Editorial Director of Slate Podcasts and June Thomas is Senior Managing Producer of Slate Podcast. We will be back with another episode of Amkus in two short weeks.