The Making of a Justice: Reflections on My First 94 Years

By John Paul Stevens

Little, Brown & Co., New York, 560 pages, $35

Just before his recent death, Justice John Paul Stevens published his full-length memoir, the likes of which had not been penned by a retired Supreme Court justice since William O. Douglas, whom Stevens replaced in 1975. Like most memoirs, this one follows a chronological roadmap of Stevens' life. The format mostly succeeds, but produces some repetition. Although written for mass readership, the author's analysis of the important cases decided during each term of his 34-year tenure on the Supreme Court may seem tedious to non-lawyers. For litigators and constitutional scholars, however, Stevens' analysis provides valuable insights into the mind of the third-longest tenured justice.

This is the third book published by Stevens since his 2010 retirement. The first, entitled Five Chiefs: A Supreme Court Memoir, analyzed the five chief justices under which Stevens served during his 63-year legal career. The second, entitled Six Amendments: How and Why We Should Change the Constitution, discussed proposed constitutional amendments dealing with political gerrymandering, campaign finance, sovereign immunity, the death penalty, firearms, and the anti-commandeering rule.

In 1970, near the end of his long Supreme Court tenure, Justice Hugo Black wrote in a biting dissent that: “Our Constitution was not written in the sands to be washed away by each new wave of judges blown in by each successive political wind[.]”

This is a theme found throughout Stevens' memoir, as he laments the general spring-cleaning of constitutional law pursued by the type of hard-right conservative justices appointed by recent GOP presidents.

The book begins with Stevens' Chicago boyhood, raised in Hyde Park as the youngest son of an affluent family of hoteliers who voted Republican.

After earning his undergraduate degree from the University of Chicago in 1941, Stevens enlisted in the Navy. During World War II, he performed cryptography for a combat intelligence unit stationed in Oahu. In April 1943, he served on the codebreaking team whose work enabled the United States to shoot down the plane carrying Fleet Admiral Isoroku Yamamoto, the mastermind of the Pearl Harbor attack. With characteristic modesty, Stevens gives most of the credit to his colleagues, and omits mention that he was awarded a Bronze Star.

Following the war, Stevens attended Northwestern Law School on the G.I. Bill, graduating in two years. His class was all-male. During the 1947-48 term, he clerked at the Supreme Court for Justice Wiley Rutledge, a liberal jurist appointed in 1943 by President Franklin Roosevelt .

As recounted by Stevens, two highlights of the 1947-48 term were a pair of discrimination cases argued by Thurgood Marshall. One was Shelley v. Kraemer, which challenged the constitutionality of restrictive covenants. Stevens writes that, upon arriving at his new clerkship, he was asked to research the deed on Rutledge's house, which contained such a covenant. The research concluded that the covenant was enforceable. According to Stevens, this conflict led Rutledge to recuse himself from Shelley, which ultimately held that such covenants violated the equal protection clause. As for Marshall, Stevens recalls that he “was a respectful, effective advocate, not cowed in the slightest by the vigorous questioning of Justice [Felix] Frankfurter.”

Between 1948 and 1970, Stevens practiced law in Chicago, principally as an antitrust litigator. Although his private practice brought him prominence, his chief claim to fame came in 1969, when he was appointed as counsel to the Greenberg Commission, which probed into corruption allegedly perpetrated by two justices of the Illinois Supreme Court. Stevens notes that he served on a pro bono basis. Many expected a “whitewash,” but Stevens' probity and assiduousness uncovered improprieties that led both justices to resign.

His reputation thus burnished, Stevens was appointed to the Seventh Circuit in 1970. He was nominated by a college classmate, Sen. Charles Percy, who had to cajole the reluctant Stevens to leave his lucrative private practice. Stevens writes that, although he lamented the reduction in income, judicial service produced one huge benefit: no more timesheets.

Following Douglas' retirement in November 1975, President Gerald Ford nominated Stevens to replace him. With the 1976 election looming, Senate Democrats could have deferred the nomination until after the election. In an act of fairness and statesmanship, however, Senate Democrats immediately held hearings and approved Stevens. Although Stevens does not mention it, his luck was certainly better than that of Merrick Garland.

During his 34-year tenure on the Supreme Court, Stevens became a champion of access to justice.

Therefore, it comes as no surprise that he considers Apprendi v. New Jersey (2000) to “be the most significant opinion I authored as a [Supreme Court] justice.” In that case, the defendant had pled guilty to a gun charge for firing into the home of a black family. The prescribed prison term for the crime was 5-10 years. During sentencing, however, the judge sentenced him to 12 years pursuant to a hate crime statute, which the judge relied on as a “sentencing factor.” Stevens' majority opinion overturned the sentence, holding that the defendant had been deprived of due process. In the book, Stevens writes that the rule announced in Apprendi “required that any fact (other than a prior conviction) that increases the maximum punishment for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.”

The best part of the book discusses controversial decisions issued by the court following the appointments by President George W. Bush of Chief Justice John Roberts (2005) and Associate Justice Samuel Alito (2006).

The foremost amongst these is District of Columbia v. Heller (2008), which recognized for the first time that the Second Amendment protects a private citizens' right to bear firearms. According to Stevens, “Heller is unquestionably the most incorrect decision that the Court announced during my tenure on the bench.”

Like his impassioned dissent in Heller, Stevens' book bluntly attacks the activist conservative majority for recognizing a new “right” that is so menacing to public safety, legislating from the bench, overruling time-honored precedents, performing a shoddy and selective historical analysis, and ignoring framers' debates that narrowed the scope of the amendment to the use of guns by militia members.

Stevens points out that the conservatives in Heller adopted the narrative that the gun-rights lobby had been advocating for years. In an ironical twist, he notes that in 1991, former Chief Justice Warren Burger, a dedicated conservative, described the NRA's expansive interpretation of the Second Amendment in these terms: “One of the greatest pieces of fraud, I repeat the word 'fraud,' on the American public by special interest groups that I have seen in my lifetime.”

Another conservative decision that Stevens regrets is Parents Involved In Community Schools v. Seattle School District No. 1 (2007), which ruled that school districts could not allocate children to different schools based on race, because the equal protection clause is color-blind and prohibits states from affording differential treatment based on race. As in his dissent in that case, Stevens writes in the book that the conservative majority's new reading of Brown v. Board of Education (1954) was not “faithful.” In a stinging indictment of the conservative majority's lack of respect “for our precedent,” Stevens concludes that: “[N]o member of the Court that I joined in 1975 would have agreed with today's decision.”

Of all his many honors and accolades, Stevens appears to have held most dear a Sept. 21, 2005 letter written by former President Gerald Ford to then dean William Treanor of Fordham Law School. In the letter, Ford stated that: “I am prepared to allow history's judgment of my term in office to rest (if necessary, exclusively) on my nomination thirty years ago of Justice John Paul Stevens to the U.S. Supreme Court.” It is difficult to imagine higher praise.

Jeffrey M. Winn is an attorney with the Chubb Group, a global insurer, and a member of the executive committee of the New York City Bar Association.