Stevens, John Paul (1920–) (Update 2)

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STEVENS, JOHN PAUL (1920–) (Update 2)

With Justice harry a. blackmun's retirement in 1994, Justice John Paul Stevens became the Supreme Court's second-most senior Justice, having served longer than any active member except Chief Justice william h. rehnquist. Stevens accordingly acquired the power to assign the Court's opinion or the principal dissent whenever he and Rehnquist were on opposite sides—which was not unusual in controversial cases.

Stevens soon made use of this prerogative. He wrote the majority opinion in U.S. Term Limits v. Thorton (1995). Stevens concluded that neither Congress nor the states could impose term limits upon federal legislators. Much of his argument dwelled upon the original intent of the Framers. It is ironic that Stevens's first major statement as the Court's senior Associate Justice focused so heavily on the Framers. Originalist reasoning had not been especially prominent in Stevens's earlier opinions, and it seems an implausible foundation for his jurisprudence.

Yet, if Stevens's methodology in U.S. Term Limits was atypical, the principles he announced were paradigmatic of his approach. Stevens insisted on two points. First, he maintained that although "Members of Congress are chosen by separate consituencies, … they become, when elected, servants of the people of the United States." That position is consistent with Stevens's usual attitude toward federalism questions. He has never been especially friendly to claims of state sovereignty.

Stevens's second key point in U.S. Term Limits provides a window on the foundations of his constitutional thought. He argued that the Constitution incorporates "an egalitarian ideal—that election to the National legislature should be open to all people of merit." Not everybody would describe this ideal as "egalitarian." Some popular conceptions of equality convert it into a leveling principle, under which all distinctions, including those supposedly based on "merit," are inherently suspect. For Stevens, though, equality presupposes neither sameness nor moral relativism. Equality entails instead the right to be held accountable as an individual for one's choices and actions. It is, in short, a right to be judged "on the merits," instead of on the basis of status, stereotypes, special privileges, or personal connections.

This idea reverberates through diverse branches of Stevens's jurisprudence. One can detect it in, for example, his views about the legal immunity of public officials :hehas looked skeptically on claims that public entities or persons should, by virtue of their status or importance, be exempt from the legal standards that govern everyone else. He has treated sovereign immunity as an anomalous ingredient in American law, and he has construed the eleventh amendment narrowly. It is therefore fitting that Stevens spoke for the Court in clinton v. jones (1997), which rejected the President's claim to immunity from private civil suits based on unofficial conduct.

Of course, the distinctive features of Stevens's conception of equality emerge most clearly in his decisions under the equal protection clause. His interpretation of the guarantee of equal protection of the laws defies conventional political categories. On the one hand, he favors aggressive constitutional measures against prejudice and stereotyping. He has accordingly voted with liberal majorities in cases like romer v. evans (1996), which struck down Colorado's law limiting gay rights, and mississippi university for women v. hogan (1982), which required Mississippi to admit men to its nursing school.

On the other hand, when he sees no evidence of stereotypes or prejudice, Stevens has been willing to permit distinctions that other liberal Justices have condemned. Thus, for example, in Miller v. Albright (1998), Stevens voted to sustain the constitutionality of a citizenship law that treated the foreign-born nonmarital children of American mothers differently from those of American fathers. Conversely, Stevens has been willing to find equal protection clause violations even when no suspect classification is at issue. For example, in a dissenting opinion in Kadrmas v. Dickinson (1988), Stevens argued that North Dakota had violated the equal protection clause by making an irrational geographic distinction in a law about school bus fees.

Stevens's views about equality have especially complex implications for affirmative action. Stevens has preferred to see the government combat racial prejudice by using fair, merit-based procedures, rather than through reverse discrimination. Thus, he has voted to hold affirmative action programs unconstitutional in fullilove v. klutznick (1980) and richmond (city of) v. j. a. croson co. (1989). Yet, Stevens was always sympathetic to the ends of affirmative action policies, if not the means. He has recognized the need for government to root out racial prejudice, and he has accordingly drawn distinctions among affirmative action programs. Stevens has been willing, for example, to uphold such programs if their purpose was to supply role models for students, wygant v. jackson board of education (1986), rather than to redistribute jobs.

More recently, Stevens joined the dissenters in adarand constructors, inc. v. peÑa (1995). Adarand, like Fullilove and Croson, involved an affirmative action plan applicable to government construction projects. The Adarand majority purported to follow Stevens's own dissent in Fullilove, but Stevens distinguished the two cases. He said that the affirmative action plan in Fullilove employed rigid racial criteria, whereas the plan in Adarand used racial presumptions as indicia of social and economic disadvantage. Certainly one can draw such a distinction. On the other hand, Stevens's tone seems more favorable to affirmative action in Adarand than in Fullilove. A reader of the two cases might conclude that Stevens's concerns about affirmative action had softened.

Stevens's view of equality presupposes that it is possible and desirable for government to draw objective, merit-based distinctions through the use of impartial, dispassionate procedures. This conviction has methodological entailments as well as substantive ones. Stevens believes that judges can reliably determine what is reasonable; he has therefore resisted the modern Court's tendency to confine its own judgment with rigid tests and bright-line rules. Most notably, he has rejected the "tiers of scrutiny" that other Justices have used in equal protection clause cases. In craig v. boren (1976), where the Court developed a new tier of scrutiny to deal with sex discrimination, Stevens protested that "[t]here is only one equal protection clause." For Stevens, the question is always the same: has the government behaved impartially? Racial and gender-based distinctions flunk more frequently than do other classifications not because they must meet a stiffer test, but because they are less often reasonable.

Stevens has therefore consistently applied a demanding form of the rational basis test in equal protection cases. He has employed the same method in due process cases to protect substantive liberty interests, and his approach in other constitutional domains is similar. In freedom of speech cases, for example, he has repudiated the Court's efforts to establish rigid categories through such constructions as the public forum doctrine and content-neutrality. Stevens made this point a central theme of his dissent in r. a. v. v. city of st. paul (1992), where he voted to uphold a criminal law against hate speech.

Some political liberals were happy with Stevens's position in R. A. V., but liberals have sometimes been displeased by his flexible first amendment doctrine. Especially notable are his dissents in the two flag-burning cases, Texas v. Johnson (1989) and United States v. Eichmann (1990). Stevens argued that the government could prohibit flag desecration in order to preserve the flag's unique symbolic value. According to Stevens, that value was useful to the government's critics, as well as to its supporters. He predicted that, if flag-burning ceased to be illegal, it would become a less meaningful form of protest. In Stevens's view, the benefits of preserving the flag's symbolic value had to be balanced against the "admittedly important interest in allowing every speaker to choose the method of expressing his or her ideas that he or she deems most effective and appropriate."

Few commentators have agreed with the way that Stevens struck this balance. Some of the criticism was unduly harsh: if Stevens's dissents in Johnson and Eichmann were unpersuasive, they were not unreasonable. One suspects that some observers were unsympathetic with Stevens's patriotism, finding it jingoistic. That is unfortunate, for the passion that shone through in Johnson and Eichmann reflects not intolerance but a heartfelt pride in American constitutional principles. If perhaps that passion colored Stevens's judgment in the flag-burning cases, it also inspired him to become one of the Court's most vigilant and independent defenders of liberty and equality.

Christopher L. Eisgruber
(2000)