STEVENS, JOHN PAUL (1920–)

When President gerald r. ford named him to the Supreme Court in 1975, John Paul Stevens had all the conventional qualifications for the job. He had served for five years on the united states court of appeals for the Seventh Circuit, had been a distinguished antitrust law practitioner, a law school teacher, and a law clerk to Justice wiley b. rutledge. But those who expected this conventional background to yield a conventional Justice soon learned better. Most new Justices write first for a unanimous Court; Justice Stevens's maiden effort, hampton v. mow sun wong (1976), included a combination of equal protection and delegation of powers doctrine so novel that only four other Justices joined in it—and two of those added their own concurrence. In the terms that followed, Justice Stevens found it necessary to write separately far more often than any of his colleagues.

Many of his concurrences and dissents were sparked by disagreement with the substance of the burger court's decisions. He is the only Justice appointed since 1968 who does not regularly vote against criminal defendants, and his strong defense of prisoners ' rights clearly runs counter to the majority's thinking. So too does his strict construction of the establishment of religion clause; and he is among the least receptive of the Justices when states assert local interests against the workings of a national economy, let alone the voice of Congress.

Overall, however, his moderate pragmatism puts him close to the center of the Court on most issues. What divides him from his colleagues is not so much substance as his fundamental dissatisfaction with the Court's judicial style. That style was summed up in united states v. nixon (1974), the year before Stevens's appointment. It is "emphatically the province and duty" of the judiciary, the Court quoted from marbury v. madison (1803), "to say what the law is." Left, right, and center, the Court he joined was nearly unanimous in wanting to say as much as possible about what the law is.

Stevens came from a different school. His first constitutional law professor, Nathaniel Nathanson, taught him that abstract talk about constitutional issues is usually misleading. In Nathanson's words, "we are the sworn enemies of the glittering half-truths, the over-simplified explanations. We are constantly at war with … the black-letter law, the restatements, the horn books." Another teacher soon reinforced the lesson; years after his clerkship, Stevens remembered: "Justice Rutledge exhibited great respect for experience and practical considerations. He was critical of broadly phrased rules which deceptively suggested that they would simplify the decision of difficult questions."

To a degree, this focus on the practical, the concrete, makes Stevens a spokesman for judicial restraint and narrow opinions. He can be relied upon, for example, to protest when the Court reaches out to decide constitutional issues on an insufficient record, as in Globe Newspaper Co. v. Superior Court (1982); when it leaps to interpret the Constitution despite a statute that would do the job, as in Regents of the University of California v. Bakke (1978); when it insists on reviewing for federal error a state court decision that will likely be restored on adequate state grounds, asin Michigan v. Long (1983); or when it invokes the overbreadth doctrine to discuss facts not before the Court, as in Metromedia, Inc. v. San Diego (1981). And despite his reputation for unorthodox and strongly held views, some of Stevens's best work has been done in painstaking opinions such as NAACP v. Claiborne Hardware Co. (1982), where he held together a diverse group of Justices by saying no more than was necessary to resolve the case.

But Stevens's rejection of glittering half-truths and over-simplified explanations is no mere passive virtue. It has a radical side. In young v. american mini theatres, inc. (1976), for example, where Stevens defended the constitutionality of special zoning for theaters showing sexually explicit movies, he did so by launching a frontal attack on that most glittering of half-truths—the assertion that government must ignore the content of the speech that it regulates. Only three other Justices joined him in Mini Theatres, but he persisted, pointing out in case after case that the principle of "content neutrality" was plainly too sweeping, that content-based distinctions had been employed for years in obscenity, libel, and commercial speech cases. Ultimately he prevailed. In New York v. Ferber(1982) the Court explicitly endorsed Stevens's Mini Theatres analysis in the course of making child pornography a new class of unprotected speech. Perhaps characteristically, Stevens refused to join the Court's opinion; in his view, the Ferber Court had fallen victim to an equally egregious half-truth—the notion that some kinds of speech are wholly beyond the scope of the first amendment's protection.

By stripping away the slogans that obscured the First Amendment, Justice Stevens left himself free to follow what he had so admired in Rutledge: he could seek "a practical solution to a practical problem," exercising "the faculty of judgment and not merely the logical application of unbending principles." Recognizing that even obscene speech is still speech, he looked at the practical effect of criminal obscenity prosecutions. In an analysis strikingly parallel to his capital punishment opinions, he concluded that the Court's obscenity decisions had produced laws so vague that they supplied juries with little or no guidance. The result was that, for most pornography, criminal penalities were applied too arbitrarily to withstand scrutiny.

At the same time, it was plain to him that the reasons for restricting sexually offensive speech do not die at the indistinct boundary between the obscene and the merely indecent. Although speech bordering on obscenity cannot be wholly suppressed, Stevens concluded, the practical—and so the constitutionally permissible—solution was to confine such speech to contexts that minimize or even eliminate its offensiveness. Thus, in schad v. village of mt. ephraim (1981) he would have allowed the town to bar nude dancing from quiet shopping centers and neighborhoods—but apparently not from "a local replica of Place Pigalle." In federal communications commission v. pacifica foundation (1978) he would have let the government keep four-letter words off afternoon radio—but not out of the United States Reports.

This insistence that constitutional issues be examined context by context marks all of Stevens's campaigns against the artificiality of black-letter constitutional law. When he joined the Court, for example, equal protection analysis had split into two tiers, each with its own set of incantations; the prevailing doctrinal dispute was whether and where to add yet a third, "intermediate" tier between strict scrutiny and rational basis review. Again Justice Stevens's solution was a striking doctrinal departure: not more tiers but fewer. "There is only one Equal Protection Clause," he wrote in craig v. boren (1976), and so only one basic standard of review. By demanding that legislative classifications be genuinely relevant to a legitimate purpose, Justice Stevens produces results not unlike those that emerge from the clanking operation of two-or even three-tiered review. The difference is that Stevens candidly exercises judgment, taking account of the context, the offensiveness of the classification, and the credibility of the legislative purpose.

Though his approach pays dividends in candor and flexibility, it has its costs. Among the first casualties, ironically, are some of the pieties of judicial restraint. Stevens's equal protection analysis, for example, does not allow him to pretend that laws are invalidated by some brooding three-tiered omnipresence in the sky. Instead, it demands a far more skeptical and probing look at legislative politics than is usual for advocates of restraint. His First Amendment analysis, for example, would replace the discredited "content neutrality" standard with a narrower requirement that government not display bias against a particular viewpoint. This practical and pointed inquiry would save some laws that do not survive the Court's more abstract standard. But the price of this restraint is high. To uphold some lawmakers' actions, as in FCC v. League of Women Voters (1984), he must bluntly accuse others of actions "obviously directed at spokesmen for a particular point of view."

Perhaps it is a recognition of these costs that makes Stevens adroit at using such techniques as "legislative remand," particularly when federal policies are at stake. His opinion in Hampton v. Mow Sun Wong (1976), for example, struck down a civil service rule barring aliens from federal employment—not because the asserted federal purposes were insufficient but because they were none of the Civil Service Commission's business. If the President or Congress adopted the same rule, he suggested, it might well withstand review. Similarly, in fullilove v. klutznick (1980) he would have invalidated a federal law reserving ten percent of certain construction grants for minority-owned businesses—not because such a set-aside was necessarily unconstitutional but because it raised profound constitutional questions that Congress had failed even to consider in its "slapdash" rush to enactment.

What does this unique mix of radicalism and restraint mean for Stevens's role on the Court? It seems clear, first, that his candor will always make him something of an outsider; it shows a glint of cheerful mischief too often for him to be a classic majority-building centrist. It may be true, as Stevens said in Lakeside v. Oregon (1978), that "most people formally charged with crime are guilty" or that "most people who remain silent in the face of serious accusations have something to hide and therefore are probably guilty." It may also be true, as Stevens wrote in Fullilove, that so-called benign racial preferences make it easier for "representatives of minority groups to disseminate patronage to their political backers." But as bracing as these unwelcome truths can be in the opinions of a single Justice, they will not, and probably should not, find their way soon into opinions of the Court.

More important over the long run is Stevens's campaign to win back broad fields of constitutional judgment from the logicians and their half-truths. Here he has had occasional victories, but he is battling uphill. Justices write opinions that leave much unsaid only when they have faith in the wisdom of those who will finally fill the gaps—the lower courts, their colleagues, future Justices. So long as most members of the Court lack that faith, Stevens's campaign for institutional humility will face long odds. Even when the Court adopts his practical, contextual approach, as it essentially has in equal protection cases, its opinions are likely to cling to the words and forms of a more mechanical jurisprudence.

Of course no Justice can expect to impose the full range of his or her views on the Supreme Court. It is when one looks at individual doctrines that the impact of Stevens's iconoclastic creativity becomes clear. At times the power of his attack has swept away entrenched dogma and cleared the way for new thinking, as it did in Ferber. More important still is his ability to come fresh to new constitutional problems and to tailor new solutions for them. This talent showed even on the Seventh Circuit, where, for example, he preceded the Court in declaring that the First Amendment is a safeguard against patronage dismissals and that state tort remedies are a way of providing due process to a prisoner deprived of his property. On the Court, by joining with other Justices in the center, Stevens has set new terms of constitutional debate in areas as diverse as the death penalty, search and seizure, and gerrymandering. As new Justices and new issues come to the Court, as the shock of his challenge to the old bromides fades, it is this practical creativity that will ultimately make his mark upon the law.

Stewart Abercrombie Baker
(1986)

Bibliography

Stevens, J.P. 1956 Mr. Justice Rutledge. Pages 176–202 in Allison Dunham and Philip B. Kurland, eds., Mr. Justice. Chicago: University of Chicago Press.

——1985 Judicial Restraint. San Diego Law Review 22: 437–452.