The Supreme Court community is still in mourning after the death last week of Justice John Paul Stevens. His law clerks and admirers knew that, at age 99, Stevens's passing could not be a surprise, but it was a shock nonetheless. We take a look at Justice Stevens's papers and what they may tell researchers about the inner workings of the court during his 35-year tenure. And on a lighter note, Justice Gorsuch's advice to a law student. Feedback and tips are welcome: Thanks for reading! Contact us at [email protected] and [email protected], and follow us on Twitter at @Tonymauro and @MarciaCoyle.

What Will Justice Stevens' Papers Reveal?

Unlike some of his contemporaries at the Supreme Court, Justice John Paul Stevens had a well-formed plan in place for public access to his papers. And that plan means that a significant segment of his papers will be made available to researchers relatively soon, in October 2020—again, unlike some of his colleagues.

A statement from the Library of Congress provided to The National Law Journal after his death July 16 states, “According to the terms of the gift to the Library, access to documents in the collection which date before October 1, 2005, become available for research use after the first Monday in October 2020, which would mean Tuesday, October 6, 2020.”

Approximately 150,000 items arranged in 375 containers, dating from 1975 to 1987, are already in the custody of the library's manuscript division, the home of many justices' papers. Stevens's papers were conveyed to the library in 2005 and converted into a gift in 2010, when he retired. A 2018 law review article about access to justices' papers states that Stevens's post-2005 materials won't be made public until 2030.

What are we likely to find when the Stevens papers go public?

Stevens gave something of a preview in his 2019 memoir, The Making of a Justice. He drew from his files to elaborate his positions in key cases. In his discussion of the D.C. v. Heller Second Amendment case, Stevens revealed a 2008 memorandum he sent urging colleagues not to join Justice Antonin Scalia's draft majority opinion. Stevens wrote:

“Because there is still time to avoid a serious and totally unnecessary self-inflicted wound, I urge each of the members of the majority to give careful consideration to the impact of this decision on the future of this institution when weighing the strength of the arguments I have set forth in what I hope will not be a dissent.”

What else? Was Stevens like Justice Harry Blackmun, who kept pretty much every scrap of paper that crossed his desk?

“Justice Stevens was not a pack rat like Justice Blackmun,” said Nancy Marder, professor at Chicago-Kent College of Law, who clerked for Stevens from 1990 to 1992. “Whereas Justice Blackmun liked everything in writing, including most of his communications with his law clerks, Justice Stevens didn't want us to send him our thoughts in writing. For the most part, we communicated with him by speaking to him in person.”

Marder added, “He kept a very neat office, with few papers on his desk.” —Tony Mauro

>> The Time Stevens and I Lost Our Lines

Justice Stevens had a mischievous but gentle sense of humor. That became obvious in 2014 when I had the honor to engage Stevens in a conversation at the annual meeting of the American Bar Association Forum on Communications Law in Florida. He arrived at the event having just swum in the ocean.

Stevens began with prepared remarks on the occasion of the 50th anniversary of New York Times v. Sullivan. He soon experienced every public speaker's nightmare: two out of 15 pages of his text were missing. Both times, after a minute or so, he summarized what those pages contained.

Later during our discussion, I lost my place looking for a question I wanted to ask him. Stevens leaned over and suggested that maybe my question had ended up in the same place where his missing pages had gone. The audience roared. The justice had the last word. —Tony Mauro

Gorsuch's Advice to Law Students

Last week, you might have seen, a letter from Justice Neil Gorsuch to a law student was rocketing across social media. A student at University of Dayton Law named Patrick Sobkowski had written to Gorsuch “asking for advice as I make my way through law school.”

“My advice to law students is very simple: work hard, learn to write and speak effectively, never give up your passions, treasure your family and friendships, find time to do public service, and learn to win—and lose—graciously,” Gorsuch said in the letter, which Sobkowski posted on his Twitter account.

He concluded his letter with this: “More than all that, know that you will have many regrets in life—things said or done, or left unsaid or undone—but one thing you will never regret is being kind.”

Sobkowski said in a tweet it was “an extremely pleasant surprise to come home to a response from him. Fantastic advice; regardless of whether you are a lawyer or not.”

Former Gorsuch clerk David Feder, responding to Sobkowski's social media post, said in a tweet: “This is the kind of thing the justice does on a daily basis, without seeking attention for it. He is a terrific person and mentor. And he practices what he preaches—he's incredibly kind to everyone.”

Gorsuch has a book coming out soon that will share personal stories “that have shaped his life and outlook.” Feder and fellow former Gorsuch clerk Jane Nitze are helping the justice write the book. Feder said in a tweet that the book talks more about Gorsuch's advice for law students, including in a piece “Ten Things to Do in Your First Ten Years After Graduation.”

Financial disclosure reports show Gorsuch received a $225,000 advance for the forthcoming book, titled “A Republic, If You Can Keep It.” —Mike Scarcella

Two Former SGs Battle Over Religious Speech

Two former U.S. solicitors general are facing off in a First Amendment religious speech case that seems tailored for the Roberts court next term, but with one big problem—the likely absence of Justice Brett Kavanaugh.

In the petition Archdiocese of Washington v. Washington Metropolitan Transit Authority, Kirkland & Ellis partner Paul Clement (above left), counsel to the archdiocese, challenges the transit authority's 2015 policy closing advertising space “to issue-oriented advertisements, including political, religious and advocacy advertisements.”

The transit board's guidelines include one that states advertisements that “promote or oppose any religion, religious practice or belief are prohibited.”

In 2017, the transit authority rejected the archdiocese's request to advertise its “Find the Perfect Gift” campaign on the outside of buses during the season of Advent. The archdiocese accused the transit authority of viewpoint discrimination against religious perspectives in violation of the First Amendment and the Religious Freedom Restoration Act.

The transit authority defended its policy represented by Donald Verrilli Jr. (above right), partner at Monger, Tolles & Olson. Verrilli filed his brief in opposition to review on Monday.

“The radical reworking of the law that Petitioner urges upon this Court would wreak havoc with the sound administration of transit advertising programs, effectively forcing transit authorities either to accept all advertising or forego advertising revenue altogether,” Verrilli wrote.

In 2018, the U.S. Court of Appeals for the D.C. Circuit said the ad policy was viewpoint-neutral and declined to issue a preliminary injunction. Kavanaugh was on the three-judge panel that heard arguments in the case, but he did not participate in its decision because of his nomination to the Supreme Court. During arguments, Kavanaugh reportedly appeared ready to side with the archdiocese based on his comments about WMATA's alleged viewpoint discrimination.

Kavanaugh's expected recusal from the case presents a dilemma for the four conservative justices most likely to grant review. Is there a fifth vote to reverse the D.C. Circuit? Or, should they risk review and a potential 4-4 split leaving the D.C. Circuit ruling against the archdiocese in place?

Perhaps the answer will come after the justices' opening conference for the new term on Oct. 1.

In June, the justices declined review in a similar case brought by American Freedom Defense Initiative, reportedly an anti-Muslim group, challenging WMATA's ad policy after the transit authority refused to run its ads depicting the Prophet Muhammad. Kavanaugh was not on the panel in that case. —Marcia Coyle

Supreme Court Headlines: What We're Reading

• From Play Ball to Oyez: Williams & Connolly Associate Scores SCOTUS Clerkship. “J. Matthew Rice has hardly followed a traditional path to the U.S. Supreme Court. After toughing it out in minor league baseball, Rice aimed instead for the legal industry's Big Leagues, eventually landing at Williams & Connolly as an associate. Now he's set to join a new nine-member club: clerking for Justice Clarence Thomas when the high court's next term kicks off in October.” [NLJ] The Associated Press has a broader look here: Ex-Marine, Professor, MLB Draft Pick Among High Court Clerks.

• Just Ideology? A Study Finds Another Predictor of Supreme Court Decisions. “Do specialists win more often than the lawyers with battered briefcases? A new study tries to answer the question. It comes from two political scientists who were inclined to be doubtful. Like most political scientists, they believed that ideology rather than advocacy generally determines the results in Supreme Court cases.” [NYT]

• Do Protections for People With Disabilities Apply Online? Domino's Asks High Court. “The ADA 'says nothing about the accessibility of websites or applications on smartphones, whether standing alone or in connection with restaurants, stores, or any other brick-and-mortar establishments that qualify as public accommodations,' wrote Washington lawyer Lisa S. Blatt, who represents Domino's.” [The Washington Post]

• Stevens Traveled to Portugal at Age 99, Ginsburg Reveals at His Funeral. “Justice Ruth Bader Ginsburg revealed Tuesday that she traveled with retired Justice John Paul Stevens 'in the last week of his life' to Lisbon, Portugal, for a conference where the two justices attended meetings, visited museums, vineyards and castles. “Perhaps he knew at age 99, distant travel was a risk,” Ginsburg said during Stevens' funeral at Arlington National Cemetery, 'but he wanted to experience fully the joys of being alive, and he did just that almost to the end.'” [CNN]

• John Paul Stevens, the Rule-of-Law Justice. “If there is a Supreme Court hall of fame, he surely has a prominent place. Stevens was the rule-of-law justice. He taught us that no person is above the law, sometimes to the dismay of those on both sides of the political spectrum,” Cliff Sloan writes. [The Washington Post]

• Justice Stevens, Babe Ruth and the Best Law Clerk Assignment Ever. “A scorecard from the game that hung in the justice's chambers confirmed that Ruth had, indeed, hit two home runs, but we didn't know where each had landed. I was given the plum truth-seeking assignment. A baseball fan myself, I eagerly searched through archives, with the help of the Supreme Court's excellent librarians, to find out where the ball had landed on those two home runs,” Merritt McAlister writes. [The Conversation]

• For Stevens, Chevron Decision Defined How Supreme Court Changed. “The late Supreme Court Justice John Paul Stevens, a Republican appointee who eventually became a liberal voice, famously said that he didn't move left—the court moved right. One of his most consequential opinions, Chevron v. Natural Resources Defense Council, shows that as much as anything Stevens touched in his 35 years on the high court.” [Bloomberg Law]