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April 01, 2009

Human Rights Hero: Justice John Paul Stevens

by Aram A. Schvey

“[No Supreme Court justice] has practiced the pragmatist’s trade more diligently and lucidly than Stevens.”

- Robert Judd Sickels, John Paul Stevens and the Constitution

A bowtie-wearing Republican former antitrust lawyer born into one of Chicago’s most affluent families would seem an unlikely candidate for a future judicial rabble rouser. Nor would one naturally assume that someone with Justice John Paul Stevens’s background would have a keen understanding of how abstract legal rules might influence police interrogations in a Rhode Island precinct stationhouse or conditions in an Arkansas prison. But his innate sense of pragmatism, coupled with several early formative experiences, including watching his own father be wrongly convicted of embezzlement (a conviction overturned on appeal), transformed the mild-mannered jurist into one of the staunchest defenders of the rights of the accused and the convicted.

The hallmark of Stevens’s pragmatic judicial philosophy is an understanding of how abstract legal principles play out in the real world. He did not arrive at it over the course of his thirty-plus years on the bench. Indeed, merely months into his tenure as an associate justice, Stevens exhibited his strong independent streak in criminal justice jurisprudence. Writing a stinging dissent in a case in which the Court denied hearings to inmates transferred to more stringent institutions, Stevens accused the majority of treating inmates as “creature[s] of the state” instead of beings “endowed by their Creator with liberty as one of the cardinal unalienable rights.” Meacham v. Fano, 427 U.S. 215, 230 (1976) (Stevens, J., dissenting). By treating inmates as no more than “slave[s],” the majority decision “demeans the concept of liberty itself,” Stevens wrote. Id. at 233. Though impassioned, Stevens’s defense of the rights of inmates was not grounded in ideology but in a profound appreciation of how a prison transfer would exact a considerable toll on inmates’ lives.

Stevens’s opinion in Meacham, with its understanding of the dangers of abstract legal rulemaking, was a harbinger of his criminal justice jurisprudence: “what is characteristic of his judging today was characteristic from the outset.” Robert Judd Sickels, John Paul Stevens and the Constitution 2 (1988). In case after case, Stevens has been unafraid to describe how the Court’s decisions affect society’s most vulnerable. Stevens thus endorsed the use of statistics to demonstrate the racial inequality of capital punishment in McClesky v. Kemp, 481 U.S. 279 (1987). He candidly described the discriminatory effect of the drug war on African Americans in United States v. Armstrong, 517 U.S. 456 (1996), noting that while the drug laws themselves might be racially neutral, “the brunt of the elevated federal penalties falls heavily upon blacks. While 65% of the persons who have used crack are white, in 1993 they represented only 4% of the federal offenders . . . Eighty-eight percent of such defendants were black.” Id. at 479Р80 (Stevens, J., dissenting).

Stevens also appreciated the real impact of repressive prison policies on the incarcerated, siding with inmates against prison officials in numerous cases, and understood that “restraints and the punishment which a criminal conviction entails do not place the citizen beyond the ethical tradition that accords respect to the dignity and intrinsic worth of every individual. ‘Liberty’ and ‘custody’ are not mutually exclusive concepts.” Hewitt v. Helms, 459 U.S. 460, 483 n.7 (1983) (Stevens, J., dissenting) (quoting United States ex rel. Miller v. Twomey, 479 F.2d 701, 712Р13 (7th Cir. 1973) (Stevens, J.)). In Hewitt, Stevens argued in favor of due process rights for inmates transferred to segregation. In Thornburgh v. Abbott, 490 U.S. 401 (1989), he advocated greater First Amendment protections for prisoners seeking access to publications. Stevens noted how important such materials were to inmates and dissected the prison’s claims that prison safety demanded such censorship, opining that the prisons decision to ban certain publications was “based on personal prejudices or categorical assumptions rather than individual assessments of risk.” Id. at 430 (Stevens, J., concurring in part and dissenting in part).

More recently, Stevens has made headlines in the context of the death penalty. In Atkins v. Virginia, 536 U.S. 304 (2002), he authored the Court’s opinion striking down the death penalty for the mentally retarded, based on the reality of their limited criminal culpability and concerns about the fairness of capital prosecutions. And in last year’s Baze v. Rees decision, 128 S. Ct. 1520 (2008), Stevens again attacked the death penalty in pragmatic terms, calling it “the product of habit and inattention rather than an acceptable deliberative process that weighs the costs and risks of administering that penalty against its identifiable benefits.” Id. at 1546 (Stevens, J., concurring).

A principled, practical, and moderate jurist, Stevens has been a stalwart and fair-minded supporter of the most reviled minority in America, the accused or convicted offender, even though doing so was often politically difficult or unpalatable. Human Rights is delighted to name him our Human Rights Hero.

Aram A. Schvey

Aram A. Schvey is the staff attorney and teaching fellow in the International Women’s Human Rights Clinic at Georgetown Law. He is a member of the editorial board of Human Rights.