One of the very greatest justices ever to serve on the Supreme Court, John Paul Stevens, has died at 99.
I wrote a piece following his retirement, focusing on how he had the best 14th Amendment jurisprudence of any justice following the retirements of Brennan and Marshall:
When John Paul Stevens was nominated by Gerald Ford to replace William O. Douglas, few could have predicted that the moderate Republican Stevens would in many respects fill Douglas’ role as the irascible liberal giant on the Court. Yet as his recent article about his opposition to the death penalty reminds us, during his long and often idiosyncratic career, Stevens emerged as the Court’s foremost critic of unequal treatment under the law. In particular, he became the Court’s strongest critic of the increasingly formalistic approach to race taken by a majority of his colleagues and was always more attentive to gender inequality than his country-club Republican pedigree would have suggested.
One thing I admired about Stevens, which will be particularly desperately missed in our current context, was his ability to quickly dispose of bad faith arguments, without any Scalia-like talk radio phrases. His brief dissent in Parents Involved, for example, is the perfect complement to what will always be the best dissent of Breyer’s career and tells you all you need to know about John Roberts’s approach to the 14th Amendment:
There is a cruel irony in The Chief Justice’s reliance on our decision in Brown v. Board of Education,349 U. S. 294 (1955) . The first sentence in the concluding paragraph of his opinion states: “Before Brown,schoolchildren were told where they could and could not go to school based on the color of their skin.” This sentence reminds me of Anatole France’s observation: “[T]he majestic equality of the la[w], forbid[s] rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.” The Chief Justice fails to note that it was only black schoolchildren who were so ordered; indeed, the history books do not tell stories of white children struggling to attend black schools. 2In this and other ways, The Chief Justice rewrites the history of one of this Court’s most important decisions.
Or his merciless dissection of the “partial birth” abortion bans whose sole purpose was undermining Roe v. Wade:
Although much ink is spilled today describing the gruesome nature of late-term abortion procedures, that rhetoric does not provide me a reason to believe that the procedure Nebraska here claims it seeks to ban is more brutal, more gruesome, or less respectful of “potential life” than the equally gruesome procedure Nebraska claims it still allows. Justice Ginsburg and Judge Posner have, I believe, correctly diagnosed the underlying reason for the enactment of this legislation–a reason that also explains much of the Court’s rhetoric directed at an objective that extends well beyond the narrow issue that this case presents. The rhetoric is almost, but not quite, loud enough to obscure the quiet fact that during the past 27 years, the central holding of Roe v. Wade,410 U.S. 113 (1973), has been endorsed by all but 4 of the 17 Justices who have addressed the issue. That holding–that the word “liberty” in the Fourteenth Amendment includes a woman’s right to make this difficult and extremely personal decision–makes it impossible for me to understand how a State has any legitimate interest in requiring a doctor to follow any procedure other than the one that he or she reasonably believes will best protect the woman in her exercise of this constitutional liberty. But one need not even approach this view today to conclude that Nebraska’s law must fall. For the notion that either of these two equally gruesome procedures performed at this late stage of gestation is more akin to infanticide than the other, or that the State furthers any legitimate interest by banning one but not the other, is simply irrational. See U.S. Const., Amdt. 14.
I will have more thoughts about his brilliant career and new memoir in the coming days. R.I.P.