Justice John Paul Stevens And The Slow Evolution Of The Law

TPM Illustration/Getty Images

This article is part of TPM Cafe, TPM’s home for opinion and news analysis.

Like many, I spent Wednesday, July 17 reflecting on the wonderful year I spent clerking for Justice John Paul Stevens. As others have said, he was a fine man — brilliant but unassuming, decisive but persuadable, sure of his views but gentle in expressing them, and guided through it all by a moral compass sorely lacking in so many of today’s public figures.

When he first offered me the clerkship, I pored over his past opinions, as well as any data I could find about his role on the Court. I quickly realized it would be a busy year, because Justice Stevens wrote many more concurring and dissenting opinions than his fellow Justices. (This chart from SCOTUSblog’s excellent Stat Pack OTO9 illustrates that fact for the Justice’s last five years on the bench, October terms 2005-2009.) At the time, I assumed the Justice often wrote separately because he disagreed with his colleagues more often than they disagreed with each other — perhaps a concrete manifestation of his widely reported (but probably exaggerated) shift from the center-right to the left flank of the Court over his 34 years there. During my clerkship year, however, I realized that his habit of writing separately reflected his judicial philosophy more than his ideology.

Justice Stevens believed to his core in the slow evolution of the law, and the central role of courts in guiding that evolution — in common law cases, when courts must apply existing doctrines to novel situations; in statutory cases, when courts must either interpret ambiguous congressional language or review agencies’ interpretive efforts; and even in Constitutional cases, when courts must consider anew the boundaries of historic rights in light of modern mores. 

As Justice Stevens recognized, that evolutionary process, like biological evolution, is inherently episodic. Sometimes there is a long period of stasis and then a sudden leap as judicial views catch up with the times. And also like biological evolution, legal evolution depends on a buildup of variability (DNA mutations, in the biological process; differences of opinion, in the legal one) to provide fodder for lasting change when the circumstances demand it.

I think that is why Justice Stevens often wrote separately: He believed it was important to record for posterity the subtle differences between his legal reasoning and that of the majority, or to fully explicate all the grounds for his dissenting vote. Ever confident and ever the optimist, he was creating evolutionary fodder for a time when the Court’s views might catch up with his own. 

 


Amanda Cohen Leiter is a Professor of Law and the Director of the Program on Environmental and Energy Law at American University’s Washington College of Law. From August 2015 – January 2017, Leiter served as a Deputy Assistant Secretary for Land and Minerals Management at the U.S. Department of the Interior, advancing Department priorities related to oil and gas and renewable energy development on public lands. Professor Leiter clerked for Judge Nancy Gertner of the Federal District Court for the District of Massachusetts; for Judge David Tatel of the U.S. Court of Appeals for the D.C. Circuit; and for Supreme Court Justice John Paul Stevens.

Dear Reader,

When we asked recently what makes TPM different from other outlets, readers cited factors like honesty, curiosity, transparency, and our vibrant community. They also pointed to our ability to report on important stories and trends long before they are picked up by mainstream outlets; our ability to contextualize information within the arc of history; and our focus on the real-world consequences of the news.

Our unique approach to reporting and presenting the news, however, wouldn’t be possible without our readers’ support. That’s not just marketing speak, it’s true: our work would literally not be possible without readers deciding to become members. Not only does member support account for more than 80% of TPM’s revenue, our members have helped us build an engaged and informed community. Many of our best stories were born from reader tips and valuable member feedback.

We do what other news outlets can’t or won’t do because our members’ support gives us real independence.

If you enjoy reading TPM and value what we do, become a member today.

Sincerely,
TPM Staff
Latest Cafe
Comments
Masthead Masthead
Founder & Editor-in-Chief:
Executive Editor:
Managing Editor:
Associate Editor:
Investigations Desk:
Reporters:
Newswriters:
Director of Audience:
Editor at Large:
General Counsel:
Publisher:
Head of Product:
Director of Technology:
Associate Publisher:
Front End Developer:
Senior Designer: