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John Paul Stevens

1975-

JOHN PAUL STEVENS was born in Chicago April 10, 1920, the youngest of four children, all sons, of Ernest James Stevens and Elizabeth Street Stevens. His father made a fortune in hotels and insurance and for a time owned and managed the Stevens Hotel, now the Chicago Hilton. The family home was adjacent to the University of Chicago. Stevens attended high school in the university's laboratory school.

He continued in college at the University of Chicago, his father's alma mater, joining Psi Upsilon, his father's fraternity. He majored in English, edited the school paper, won the university's highest honors for scholarship and campus activities, and graduated Phi Beta Kappa in 1941. The next year he married Elizabeth Jane Sheeren, with whom he had a son and three daughters. They divorced in 1979, and he married Maryan Mulholland Simon the following year.

Stevens considered becoming a teacher before joining the World War II effort. A naval officer assigned to a code-breaking team from 1942 to 1945, he was awarded the Bronze Star. After the war, encouraged by one of his brothers, an attorney, he studied law at Northwestern University, as had his father. Stevens became editor-in-chief of the law review and in 1947 graduated first in his class with the highest grades in the law school's history. He then served as clerk to Wiley Rutledge, a liberal Supreme Court justice.

Returning to Chicago, Stevens joined a prominent law firm that specialized in antitrust law. He earned a solid reputation as an antitrust lawyer and formed his own law firm in 1951. He also taught antitrust law at the Northwestern University and University of Chicago law schools. Stevens served as associate counsel of a House of Representatives subcommittee studying monopoly power in 1951, and from 1953 to 1955 as a member of the attorney general's committee to study antitrust laws. Because of his competence and integrity, he was named general counsel to an Illinois commission investigating the conduct of state supreme court justices in 1969. In 1970 President Richard Nixon appointed him to the Seventh Circuit Court of Appeals.

In his years on the court of appeals, Stevens gained distinction as a legal craftsman. When William O. Douglas retired from the Supreme Court in 1975, Stevens was one of eleven candidates (including future nominee Robert Bork) considered by Attorney General Edward Levi, a former law dean and president of the University of Chicago. There was consensus within the legal community that Stevens was an unusually able jurist. Although a registered Republican, he had never been active in party politics. As Sen. Charles Percy of Illinois said in his supporting statement, he was a "lawyer's lawyer" when named to the court of appeals and was now a "judge's judge." President Gerald Ford hoped that the nomination of a moderate who had been given the American Bar Association's highest rating would help restore confidence in government in the wake of the Watergate scandals. The Senate confirmed Stevens December 17,1975, 98-0, and he took the oath of office two days later at the age of fifty-five.

On the Supreme Court Stevens has been practical and down-to-earth rather than ideological, and he has continued to be as independent minded as he was on the court of appeals. This approach has set him apart from the other justices, most of whom have been either habitually liberal, particularly in supporting the rights of the individual, or conservative, supporting the authority of the government. Stevens has been the least predictable member of the Court, although in recent years he appeared more liberal as the Court moved to the right with each Reagan and Bush appointment.

Independent-minded pragmatists like Stevens are not often appointed to the Court because presidents usually want justices who will vote reliably and not oppose their programs. If they are wise in the ways of the Court, presidents know that justices do not bow down to them; yet presidents hope for some ideological compatibility. Stevens, however, is a justice without a social agenda. As judge and justice he has seen himself as a problem solver, not a crusader. His constitutional theory is about deciding individual cases well, one by one.

His ways of judging have differed from those of the more consistent liberals and conservatives on the Court in two basic respects. The first is a cluster of mutually reinforcing tendencies: an appetite for facts, sensitivity to a variety of values, and a search for balance among them. The second is an inclination to defer to other institutions when it can be done in good conscience and, when it cannot, an insistence that the Court decide thoughtfully, without shortcuts. Stevens hungers for facts about the behavior of the people in each case and about others in society with similar problems who will be affected by the Court's decision. To make a decision without understanding both the case and its social context is often to miss the point. Facts cast light on the stakes: Who gains? Who is hurt? How? How much? The challenge, for Stevens, is to weigh and balance the conflicting values that come to mind as he explores the details of a case.

An openness to experience and to the interplay of facts and values is evident throughout Stevens' opinions. A good example is his opinion for the majority in Federal Communications Commission v. Pacifica Foundation (1978), upholding an administrative decision to accept a father's complaint against a radio station for broadcasting a monologue entitled "Filthy Words," inadvertently tuned in while he was driving with his son. Rather than deal with freedom of speech as an abstraction, as some of his colleagues did, Stevens explored a series of facts in the case, each of which illuminates important personal or societal interests.

It was a radio broadcast, intruding upon "the privacy of the home, where the individual's right to be left alone plainly outweighs the First Amendment rights of an intruder," not a book or a theater production. "Outside the home, the balance between the offensive speaker and the unwilling audience may sometimes tip in favor of the speaker, requiring the offended listener to turn away." A radio broadcast, however, is also available to children, in whose well-being the government has a legitimate interest and over whom parents have a claim of authority. It was heard by a young child, and young children are more apt to be adversely affected than older children. The monologue was broadcast in the afternoon, when the very young are more likely to listen, rather than at night. Its plain language also affected its accessibility. For contrast, Stevens quoted a passage from the Canterbury Tales at least as lewd as anything in the monologue but relatively obscure and less likely to turn up uninvited in anyone's house. That it was spoken rather than written made it available even to children too young to read. This broadcast, he said, "could well have enlarged a child's vocabulary in a minute."

Further, the explicit language was spoken during regular programming, not in a telecast of an Elizabethan comedy, for example, to which a different kind of audience would be tuned. To support his view of the monologue as speech of relatively little importance, Stevens appended it in full to his opinion, (where it now sits, in law libraries across the country, safely inaccessible to all but callous adults). Last, he deliberately did not decide that this broadcast would justify a criminal prosecution (in which other basic rights would be invoked). Fact-gathering is Stevens's way of discovering how a case will affect people and their constitutional rights and responsibilities. It is an exercise in which, as he says, "one's initial impression of a novel issue is frequently different from his final evaluation," and balancing is his way of deciding which values shall prevail. In this case, had it been high comedy, for example, or a willing adult audience, Stevens's balance might have tipped the other way, protecting the performance and rejecting the complaint.

Stevens argues that one who is close to the facts is in the best position to make intelligent decisions. Appellate courts, including the Supreme Court, are handicapped by limited, secondhand information and often, too, by a lack of technical expertise. If sounder judgments can be made by specialists on the scene, such as administrators, parents, and trial judges, Stevens's inclination is to let their decisions stand. It is toward Congress that he is most respectful, because of its exceptional political insight, access to information, and constitutional authority. Typically he studies the language and the legislative history of a statute before the Court to discover the lawmakers' will. Yet if an honest search turns up no coherent legislative purpose, or simply an absence of serious discussion, he is far less deferential.

For example, dissenting in Delaware Tribal Business Committee v. Weeks (1977), he found "manifestly unjust and arbitrary" an act of Congress that, in settling a claim by the Indian Claims Commission, provided funds for all but one of the dispersed groups of Delaware Indians covered by the commission's award, without explaining the exception. Stevens concluded that the exception was unintentional. "There is no reason to believe that the discrimination is the product of an actual legislative choice," he wrote. In a dissent to Fullilove v. Klutznick (1980) he called a public works law allocating 10 percent of appropriated funds to minority contractors "slapdash." Congress, he said, "for the first time in the Nation's history, has created a broad legislative classification for entitlement to benefits based solely on racial characteristics,…" but it "was not the subject of any testimony or inquiry in a legislative hearing.... It is true that there was a brief discussion on the floor of the House as well as in the Senate on two different days, but only a handful of legislators spoke and there was virtually no debate." The evident purpose, he concluded, was to give certain congressional constituents "a piece of the action." In other words, if Congress wants to test the limits of the Constitution, it should do so with care.

Stevens also defers to lower court decisions and to Supreme Court precedent, but, again, not if they are badly done. He has found fault with the Court's complex (and in his view hopelessly confusing) definitions of obscenity and establishment of religion, for example. He has also criticized summary judgments--cases decided without oral argument when the justices are content with the initial written arguments--because they are decisions based on incomplete information.

Some of Stevens's critics believe his emphasis on fact, context, and balance sabotages the higher calling of the Court of providing principled, moral leadership for the legal system and the nation--"legitimizing nascent aspirations [and] reinvigorating dormant ideals," as one put it. Further, his irrepressible habit of writing more concurring and dissenting opinions than anyone else on the Court, most years, has disturbed those who favor Court unity. They cite cases such as Brown v. Board of Education (1954), in which the members of the Court set differences aside and joined in support of one plain, powerful statement in defense of school desegregation. To Stevens's admirers, the independence of mind, the rooting for facts and meaning, the imaginative insights, and the assumption that neither life nor law is simple, offer a fresh look at society's problems as an alternative to old legal labels and familiar solutions.

The man himself, it is agreed, is quiet and mild-mannered. At one time or another he has played serious squash, bridge, tennis, and golf and flown his own small airplane. He possesses a puckish ness that now and then finds its way into his opinions--particularly his concurrences and dissents. Justice Stevens has a fondness for bow ties, which, too, in its way is a dissenting opinion.