The Making of a Justice: Reflections on My First 94 Years
By Justice John Paul Stevens
(Little, Brown and Company, $20.42)
Have you ever had the pleasure of sitting down for a chat with a Supreme Court justice? No? Most of us haven’t, but after reading The Making of a Justice, I felt like I experienced something close to it. Justice John Paul Stevens’ memoir, published a few months before his death, provides a fascinating glimpse of his private life and thinking on all manner of subjects. Written for his grandchildren and great grandchildren so that they might have a better understanding of his life, The Making of a Justice begins with a history of his English forefathers and ends with his surprise 94th birthday celebration, which included the recitation of a handwritten note from President Barack Obama, who had honored him some years earlier with the Presidential Medal of Freedom. What follows are some highlights of this memorable book.
Indoctrination into Criminal Justice
Surprisingly, Stevens had an early exposure to the criminal justice system. He wrote about a comfortable upbringing in Chicago, Illinois, that was not, however, without controversy. His father managed two family-owned hotels, which were lucrative until the Depression. Questions about the legality of a loan obtained in order to save the hotels led to his father’s indictment on a charge of embezzlement. His father’s conviction was later overturned, but that experience informed his thinking regarding the fallibility of the criminal justice system and on the death penalty.
A Sports Enthusiast
An avid Cubs fan, Stevens attended the third game of the 1932 World Series as a boy, in which FDR threw out the first pitch. At that game, Stevens witnessed Babe Ruth hit his called shot over the centerfield scoreboard. Even though the Yankees swept the Cubs in four games to earn the pennant, a copy of the box score from that game hung in his chambers.
Stevens related the “awe” he felt at the Cubs’ invitation in 2005 to become the first Supreme Court justice to throw out the first pitch in a Major League game at Wrigley Field with 30 family members in attendance. The pitch, which he described as “high and inside,” cleared the plate. Remarkable, given that he was 85 years old at the time.I think he meant his baseball career, but we’ll never know for sure.
Stevens enjoyed participating in other sports throughout his life, including golf, skiing, and tennis.a hole in one on the par three, 170-yard 11th hole at the course at Snowmass, Colorado, and breaking 100 at Augusta, an accomplishment of such magnitude that his friends threw him a party to celebrate.
Stevens held a unique role in the fight against the Axis powers during World War II. A distinguished student, Stevens caught the attention of the dean of the University of Chicago, who, upon his graduation, recommended him for a secret correspondence course in cryptography offered by the U.S. Navy. Most of Stevens’ tenure as a traffic analyst for the communications intelligence section of the Navy was spent in Hawaii, where he chanced to meet the future Justice Byron White. Though he was clearly doing important work, Stevens’ recollections of his time in Hawaii also included rounds of golf (including one in which he met Bob Hope), meals at restaurants that served really good steak, spirited games of ping pong and bridge, and the natural wonders of the state on sightseeing excursions.
At the end of his military service, it was a letter from one of his brothers describing the fulfillment he experienced as a lawyer, helping people in need, that convinced Stevens to pursue a legal career. He subsequently attended Northwestern University School of Law and graduated in 1947.
After graduating law school, Stevens’ first job was clerking for Supreme Court Justice Wiley Rutledge. He then entered private practice; did a stint in the government (notably, associate counsel for the House Judiciary Subcommittee on the Study of Monopoly Power); and eventually opened his own firm, Rothschild, Stevens, Barry & Myers, in 1952. In 1970, he was appointed to the U.S. Court of Appeals for the Seventh Circuit, where he stayed until President Gerald Ford tapped him for the Supreme Court in 1975. He was confirmed 98-0 by the Senate.
While The Making of a Justice provides glimpses of his personal life, much of the book is comprised of Stevens’ exhaustive and illuminating review of decisions handed down during his nearly 35 years on the Supreme Court bench. While scholars of the Supreme Court will relish learning the backstory that was part of each decision, space permits reference to only a few of the more consequential decisions in which Stevens was involved.
The Supreme Court reviewed many cases involving the death penalty during Stevens’ tenure. Readers of The Making of a Justice can easily trace the evolution of Stevens’ view of the death penalty.
A divided court concluded that statutes mandating the death penalty following a finding of guilt were invalid and that statutes permitting a jury to impose the death penalty after a separate hearing following a finding of guilt were valid. Reflecting on his decision in with the benefit of hindsight, he stated,
In his 37-page dissent, Stevens noted that if such a penalty He noted with pride that his view was later adopted by the Court.
He noted that the opinion represented the last chapter in the effort by him, Justice Powell, and Justice Stewart (who once compared the risk of arbitrariness in the imposition of the death penalty to being struck by lightning) to require that any decision to impose a death sentence must The holding in Booth was overruled by , a decision that Justice Stewart declared was And in one of the last death penalty cases in which Stevens played a role, , he wrote a separate concurring opinion supporting the judgment that Kentucky’s method of lethal injection did not violate the death penalty — but, for the first time, he stated his opposition to the death penalty, noting that the rules that deprive capital defendants of a jury composed of a fair cross-section of the community, the risk of error, the discriminatory application of the death penalty, and the irrevocability of such a penalty
Stevens was involved in many other momentous decisions. In, which he described as the most important abortion case since Stevens joined Justices O’Connor, Kennedy, Souter, and Blackmun in an opinion that identified the more constitutionally grounded right of liberty, rather than privacy, which has no mention in the Constitution, as the source of a woman’s right to choose whether to have an abortion.
Equal Protection Clause
Not surprisingly, Stevens devoted a great deal of attention inHe outlined the flaws in the analysis of the opinion, extolled the dissents, and concluded that
Stevens identified the decision inas suggesting that Prior to the decision being announced in Heller, Stevens related, he took the unusual step of circulating his opinion to the other justices well in advance of the majority opinion circulated by Justice Scalia to try to gain support for arguments in which he so strongly believed.
One of the last cases in which Stevens participated wasHe described the holding as a disaster for election law. On the morning that the opinion was announced, Stevens read a summary of his dissent, which advanced the notion that if the majority argument that the identity of a speaker is never relevant to the government’s ability to regulate speech, the propaganda broadcasts of Tokyo Rose would have been entitled to the same constitutional protection as speeches by Allied commanders. Difficulty in delivering his remarks led to discovery that he had suffered a mini stroke and a determination that he should retire.
Finally, another theme that stands out in The Making of a Justice is the independence of the judiciary. In remarks delivered at a meeting in Helsinki, Finland, to celebrate the 40th anniversary of the Finnish-American Society, Stevens shared some observations that have enduring relevance:
It is nevertheless worthy of note that the power of the independent judiciary in the United States has survived the criticism and the occasional hostility of the Executive and Legislative Branches even though the entire control of the physical and economic resources of the Government is possessed by those two Branches. The weakest of the three Branches of the American Government is able to function effectively largely because the impartiality of the Federal Judiciary is virtually never questioned.
Rich with history, illuminating insights, and themes that continue to resonate in today’s world, The Making of a Justice is well worth your attention.
Maureen Essex is the CJA coordinating attorney for the U.S. District Court for the District of Maryland. She was chair of the Division in 2001-2002.