Book Review - The Making of a Justice: Reflections on My First 94 Years by Justice John Paul Stevens

By Maureen Essex

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. “[T]hat was unquestionably the high point of my career,” he said.  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. He noted with pride his once-in-a-lifetime achievements: 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.

Early Career

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.

Consequential Decisions

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.

Death Penalty

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.

The first of these cases occurred during his first term. Stevens was charged with the responsibility of drafting the statements of fact in five cases challenging statutes enacted in the wake of Furman v. Georgia. 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 Jurek v. Texas, with the benefit of hindsight, he stated, “Whether or not my vote to uphold the validity of capital punishment in 1976 was correct, I am now convinced that the very real risk that an innocent person may be put to death in such a case provides a sufficient reason for ending that form of punishment.”

Stevens revisited the death penalty in Spanziano v. Florida, a case in which the Court upheld a statute authorizing a judge to impose a death sentence notwithstanding a jury recommendation of a life sentence. In his 37-page dissent, Stevens noted that if such a penalty “is justified because it expresses the community’s moral sensibility, … a cross section of the community must be given the responsibility for making that decision.” He noted with pride that his view was later adopted by the Court.

Stevens joined Justice Lewis Powell’s opinion in Booth v. Maryland, invalidating Maryland’s statute authorizing the use of victim impact statements in capital cases. 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 “be, and appear to be, based on reason rather than caprice or emotion.” The holding in Booth was overruled by Payne v. Tennessee, a decision that Justice Stewart declared was “one of the worst in the Court’s history.” Stevens was the lone dissenter in Harris v. Alabama, which upheld a death sentence ordered by a trial judge despite a recommendation of a life sentence by the jury. And in one of the last death penalty cases in which Stevens played a role, Baze v. Rees, 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 “counsel against having the death penalty at all.”

Abortion

Stevens was involved in many other momentous decisions. In Planned Parenthood of Southeastern Pennsylvania v. Casey, which he described as the most important abortion case since Roe v. Wade, 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.

Presidential Immunity

In a decision foreshadowing recent events, a unanimous court held in Clinton v. Jones that the Constitution did not grant the president immunity from liability for wrongful conduct that may have occurred before he became president, rejecting President Clinton’s argument that such litigation would place an unacceptable burden on him during the performance of his duties.

Equal Protection Clause

Not surprisingly, Stevens devoted a great deal of attention in The Making of a Justice to Bush v. Gore. He outlined the flaws in the analysis of the opinion, extolled the dissents, and concluded that “the Court has not fully recovered from the damage it inflicted on itself in Bush v. Gore.”

Criminal Sentencing

In what Stevens identified as his most significant authored opinion, Apprendi v. New Jersey, the Court found 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.

Second Amendment

Stevens identified the decision in District of Columbia v. Heller as “unquestionably the most clearly incorrect decision that the Court announced during my tenure on the bench,” suggesting that “an amendment to the Constitution to overrule Heller is desperately needed to prevent tragedies such as the massacre of twenty grammar schoolchildren at Sandy Hook Elementary School on December 14, 2012 , from ever happening again.” 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.

Campaign Speech

One of the last cases in which Stevens participated was Citizens United v. FEC. He 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.

Judicial Independence

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.
Disagreement concerning the wisdom of particular decisions contains no suggestion of improper motivation, bad faith, or the quest for political advantage.  An honest mistake by an independent judge is less dangerous than a popular decision by a tribunal beholden to the party of power.

Conclusion

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.