The Last of His Kind

John Paul Stevens
John Paul Stevens; drawing by David Levine

The inspiring legacy of Justice John Paul Stevens—including both the brilliance of his mind and the humaneness of his character—are well represented in his last book, The Making of a Justice, published just two months before his death this past July at age ninety-nine. But if, as seems likely, the US Supreme Court is poised to embark on a voyage of regression, the book makes for wistful reading as well. For Stevens was a throwback to the postwar liberal Republican appointees (for example, Chief Justice Earl Warren and Justice William Brennan) who did so much to transform the Supreme Court, for a time, into an engine of social progress.

The Court has more often been a barrier to change. In the pre–Civil War period, much of its attention was dedicated to upholding slavery (in cases such as Dred Scott). After the Civil War, it devoted its efforts to undercutting Reconstruction (as in the so-called Civil Rights Cases), justifying segregation (as in Plessy v. Ferguson), and opposing the actions of labor unions (as in Loewe v. Lawlor). In the first half of the twentieth century, it tried to nullify many parts of the New Deal, upheld the wartime detention of Japanese-Americans, and did much to restrict free speech (as in Schenck v. United States, in 1919, which criminalized criticism of the draft during wartime). And from the last decades of the twentieth century to the present, the Court has focused a good deal of its energy on narrowing the Fourth and Fifth Amendment protections against police misconduct that the Warren Court had expanded, and on buttressing the power of big business and the interests of the wealthy in ways most obviously exemplified by Citizens United.

Whatever the reasons for the Court’s traditionally conservative slant—whether clothed in language of “judicial restraint” (as in its recent refusal to remedy blatant political gerrymandering), “textualism,” “originalism,” or just barely disguised political advantage (as in Bush v. Gore)—too much of the Court’s history bespeaks regressive tendencies, of which, in hindsight, one can only be ashamed. But for a short period in the mid-twentieth century, the Court was able to escape those shackles and concentrate instead on furthering the broad principles and promises embodied in the Constitution and the Declaration of Independence as applied to modern conditions. Stevens very much shared that view of the Court’s purpose, but over the course of his tenure the ideological balance of the Court changed, which made it harder for him to carry out this vision.

An especially interesting part of Stevens’s book is the first 130 pages or so, which recount his upbringing and training before he joined the Court. He grew up in a wealthy Chicago family that prized the kind of self-restraint that now seems so out of style. Although one would hardly know it from his modest account, he was both a superlative student (achieving the highest grades…

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