Spotlight: Scalia Called Stevens’s Evolution ‘Arrogance.’ It was the Opposite.
Just about every year while they were on the bench, the Supreme Court Justices John Paul Stevens and Antonin Scalia would take each other on. “These contests reflect the temperaments of the two men—Stevens’s cautious balancings against Scalia’s caustic certainties,” wrote Jeffrey Toobin for the New Yorker in 2010. Two years prior, in Baze v. Rees, the justices were called on to decide whether execution by lethal injection amounted to cruel and unusual punishment. Stevens and Scalia both voted with the majority, holding that lethal injections were permissible, but wrote separate concurring opinions. Stevens wrote that his experience on the Court had soured him on the death penalty: “State-sanctioned killing is … becoming more and more anachronistic.” He showed that all of the purported justifications for the death penalty, including deterrence and retribution, failed in practice. “I have relied on my own experience in reaching the conclusion that the imposition of the death penalty ‘represents the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes.’” Still, he felt bound by precedent to uphold lethal injections.
In what he called a “needed response to Justice Stevens’s separate opinion,” Scalia blasted Stevens for invoking his own experience. “In the face of Justice Stevens’s experience, the experience of all others is, it appears, of little consequence,” Scalia wrote, adding, “It is Justice Stevens’s experience that reigns over all.” Scalia’s mockery, Toobin writes, gets to the heart of his critique of Stevens’s jurisprudence—that his variability simply amounts to a judge’s whim. “That flexibility and malleability that Stevens talks about is really just a license for a judge to reach any result he wants,” said M. Edward Whelan III, a former Scalia clerk who runs the conservative Ethics and Public Policy Center.
But what Whelan calls “malleability” is what others would call “growth.” John Paul Stevens, who served on the Supreme Court from 1975 to 2010 and died Tuesday, at the age of 99, was a Republican jurist appointed by a Republican president. By the time he left the Court, during the tenure of Chief Justice John Roberts, Stevens was the senior member of the Court’s liberal wing. Stevens often attributed this shift to the Court moving sharply to the right during his tenure. “I don’t think of myself as a liberal at all,” Stevens told The New York Times in 2007. “I think as part of my general politics, I’m pretty darn conservative.”
In terms of his process, Stevens may not have changed profoundly. Linda Greenhouse wrote that from beginning to end, Stevens was “a judge who looked at the facts on the ground rather than theories in law review articles, one who tended to regard doctrinal debates as a distraction from a judge’s real work, which in his opinion was the application of judgment to the case at hand.” In other words, he was thoughtful, not doctrinaire. By staying consistently open, he allowed the substance of his views to shift. Unlike Scalia, who calcified, Stevens grew.
Stevens knew that his views had changed. It isn’t likely that in 1975 he would have anticipated calling for the Second Amendment to be abolished, which he did after retiring. Stevens explained his changing views by saying that he had simply learned on the job. “I know that I, like most of my colleagues, have continued to participate in a learning process while serving on the bench,” he said in 2005. “Learning on the job is essential to the process of judging,” he continued. “At the very least, I know that learning on the bench has been one of the most important and rewarding aspects of my own experience over the last 35 years.”
Stevens also listened carefully. He rarely asked the first question during oral argument, preferring to weigh in around the halfway point with a request for permission. “He’ll say something like ‘This is probably obvious, but I have this one question. Could you help me with this one point?’” said Paul Clement, who was President George W. Bush’s solicitor general. “You have to be on your guard, because he’s probably found the one issue that puts your case on the line.” Jeffrey Fisher, who clerked for Stevens said, “The reason he very rarely speaks first is that he really listens to his colleagues and tries to figure out what is on their minds and tries to figure out what the swing votes care about in the case.”
“Stevens was especially concerned with the plight of ordinary citizens up against the government or other powerful interests—a type of struggle he witnessed as a boy,” write Mark Sherman and Connie Cass for the Associated Press. “When he was 14, his father, owner of a grand but failing Chicago hotel, was wrongly convicted of embezzlement. Ernest Stevens was vindicated on appeal, but decades later his son would say the family’s ordeal taught him that justice can misfire.” Stevens also credited his sensitivity to abuses of power by police and prosecutors to learning on the job: He had represented criminal defendants in pro bono cases as a young Chicago lawyer.
Perhaps his most visible shift was on the death penalty. In 1976, only a year into his tenure, Justice Stevens joined Justice Potter Stewart’s opinion in Gregg v. Georgia, reinstating the death penalty and calling it an “expression of the community’s belief that certain crimes are themselves so grievous an affront to humanity that the only adequate response may be the penalty of death.” The same year, Stevens voted to uphold Texas’s death penalty, a vote he came to regret.
But in 2002, it was Justice Stevens who wrote the majority opinion in Atkins v. Virginia, finding that the Constitution does not permit executing mentally disabled people. Such defendants “face a special risk of wrongful execution,” he said, because of their limited ability to understand their actions and participate in their own defense. Scalia, in dissent, said that the majority had passed its own views off as law. “The arrogance of this assumption of power takes one’s breath away,” he wrote. But it was humility, not arrogance, that allowed Stevens to grow. Three years later, he would concur in Roper v. Simmons, the decision that ended the death penalty for those who commit capital crimes before the age of 18. “That our understanding of the Constitution does change from time to time has been settled since John Marshall breathed life into its text,” Stevens wrote.
“Over the years I became more and more unhappy with the failure of the court to impose adequate procedures in capital litigation,” he told Emily Bazelon four years ago. “I dissented in the ways we allowed for picking juries and on the permissible scope of evidence allowed in a death penalty hearing. I became increasingly disenchanted with the operation of the death penalty. I did conclude in my own mind that it was unconstitutional. Because it had some seriously harmful effects.”
“The distance Justice Stevens traveled over a quarter century was the path from novice to veteran,” writes Bazelon, but even as a veteran, Stevens often shied away from expressions of certainty, adopting what the philosopher Richard Rorty might have approvingly called irony. “Well, on the death penalty itself, if [Texas and other states] had enforced the procedural safeguards I thought were going to be enforced, I’m not sure it would be unconstitutional,” he told Bazelon. “Well, I guess it would be. I guess I’d have to say it’s a relic of the past and it should be buried.”
Advocates, activists, and public defenders argue every day that people change, and should be given the chance to do so. We plead for second chances for young people facing the system for the first time, and for aging people who have spent decades in cages. It isn’t often that we find ourselves advocating on behalf of the powerful, especially those who voted early in their careers for state-sanctioned killings. But Stevens grew and changed as he gained experience; he did not calcify. That kind of change is the most we can hope for, from ourselves and each other.