Justice Stevens: The Great Contrarian
What Justice Benjamin Cardozo said of Justice Oliver Wendell Holmes, Jr. on Holmes’s 90th birthday equally applies to the jurisprudence of Justice John Paul Stevens: “One cannot read [his] opinions without seeing honor and courage written down on every page.” During his nearly 40 years as a jurist, Justice John Paul Stevens quickly emerged as a measured voice with a reputation for offering his own nuanced perspective.
Justice Stevens refused to quietly join a majority opinion whenever he harbored even the slightest disagreement. This explains the impetus for his over 1,000 concurrences and dissents as a judge on the Seventh Circuit Court of Appeals and the Supreme Court—a prodigious number.
But his motivation to publish his views does not explain his motivation to be a freethinker. I believe history will portray Justice Stevens as the Court's “Great Contrarian” in the same manner we remember Justice Oliver Wendell Holmes as the Court's “Great Dissenter.” I am using the word “contrarian” in the narrow sense, someone who questions conventional thinking, who is not easily swayed by others, and who welcomes the examination of possibilities that others might disregard. Contrarians keep an inquisitive mind and are self-assured. They go against the herd, preferring to follow their own instincts. By challenging the majority stance, they breathe penetrating insights into a discussion.
In his first year on the Supreme Court, Justice Stevens set the record for lone dissents by a new Justice. And his independence never waned. For instance, for the 10 years ending in the 2004 term, one study concluded that Justice Stevens voted with the majority the least of any of the Justices (69.5 average), with the next lowest average belonging to Justice Antonin Scalia (77.2). In addition, Stevens refused to participate with the other Justices in the pooling of law clerks on incoming certiorari petitions.
Justice Stevens’ opinions drew heavily on his own homework and brainwork. He prepared an initial draft himself, and then handed it over to a law clerk because, he said, it sharpens his understanding of the appeal. His opinions eschew a political ideology or a dominant mindset. Little wonder that former New York Times Supreme Court reporter Linda Greenhouse once used these words to describe the Justice--“enigmatic, unpredictable, maverick, a wild card, a loner.”
This fondness for expressing his positions emerged from his experience as counsel to a special 1969 committee that investigated corruption charges against two Illinois Supreme Court Justices. As Justice Stevens told it, “There were two dissenting opinions in the Illinois Supreme Court that were never published, out of a concern for collegiality. I have often thought that if I do not agree with the majority's rationale in a given case, I should let the public know about it.”
Bow Tie and All
Justice Stevens’s extreme number of concurrences and dissents has left a robust trail that attests to his determination to be his own person. He would not hesitate to stick his neck out—bow tie (another sign of a contrarian) and all. Indeed, rather than go along with the majority without a peep of protest, with Justice Stevens, you knew exactly where he stood, and why.
His gumption to disagree served to crystallize his thoughts and concentrate his concerns. As a modern-day philosopher put it, “The beginning of thought is in disagreement—not only with others but also with ourselves.” The essence of Justice John Paul Stevens’s approach to the art of judging is his ability to disagree, and through disagreement to think critically about the merits of opposing arguments and the soundness of his own perspective.
Therein lies his honor and courage as well.
Justice Michael B. Hyman, a member of the ISBA Bench and Bar Section Council, serves on the Illinois Court of Appeals, First Circuit. This article is reprinted with permission from the CBA Record, September/October 2019 issue.