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It is more than a little painful to think today about how Justice John Paul Stevens would have handled some of the cases that have proven so vexing for the current Court in the era of Donald Trump.
He would not, for example, have struggled much to recognize that the reason offered by the Commerce Department for adding citizenship to the census was a pretext. There was no evidence in the record in that case that administration officials were genuinely interested in enforcing the Voting Rights Act, as it claimed; there was plenty of evidence elsewhere that administration officials had an entirely different agenda in mind.
Neither would Stevens have hesitated to see through the administration’s claims that the President’s order banning entry of certain foreign nationals into the United States was supported by the national security justification the President’s lawyers offered in its defense. Trump had campaigned and won on a platform that included overt religious discrimination. Stevens would have found it impossible to ignore that reality. It was his lifelong custom as a lawyer and judge: he always started with the facts.
Proof of Stevens’ commitment to taking the cases as he found them — in all their messy truth — is everywhere in his jurisprudence, perhaps most striking in what was at the time his shocker of an opinion for a 5-3 majority in 2006’s Hamdan v. Rumsfeld. The Court there struck down President George W. Bush’s novel system of military commission war crimes trials at Guantanamo Bay as beyond the President’s power under law. Among other things, Justice Stevens explained, Congress had years earlier passed a law providing that the rules for any war crimes trials had to be the same as those available in ordinary, A Few Good Men-style courts martial, unless having the same rules actually proved “impracticable.”
As conventional wisdom had it at the time, questions like what process was “practicable” for trying alleged enemy fighters was tailor made for the President — not the courts — to decide. The executive branch had special expertise in such matters of national security, and was most especially entitled to deference on such matters when there was still a war on. The laws are not “silent in time of war,” Chief Justice Rehnquist had written before his death the term Hamdan was decided, “but they will speak with something of a different voice.”
Justice Stevens himself had more than ample reason to embrace such claims of deference to executive branch views. The Court’s last remaining World War II veteran, a naval cryptographer decorated with a Bronze Star for his work, the justice knew more acutely than any of his colleagues about the value of military expertise. More, the justice has written what no doubt remains among the most cited Supreme Court decisions of all time, his publicly obscure but legally pivotal 1984 opinion in Chevron v. Natural Resources Defense Council, holding that when an act of Congress is unclear, judges should usually defer to the executive agency’s interpretation of the law rather than impose their own estimation of what Congress meant.
But in the face of the President’s claims in Hamdan that the danger posed by international terrorism demanded rather fewer rights for war crimes defendants than the law might otherwise require, Justice Stevens found the evidence lacking. Without “for one moment underestimating” the danger of terrorism, the justice wrote, the President could point to “no specific reason in the record” that ordinary court martial rules would not work. “There is no suggestion, for example, of any logistical difficulty in securing properly worn and authenticated evidence or in applying the usual principles of relevance and admissibility.” And all around the record — amicus briefs and reports making clear that the administration had adopted the commission rules over the objections of executive branch experts, and of senior military leaders including the Army judge advocate general himself. To any consumer of reality, the right outcome was clear.
Justice Stevens admired John Roberts when he appeared as an advocate before the Court, as Roberts often did before he was appointed to take the late Chief Justice Rehnquist’s seat. Stevens thought Roberts a wonderful lawyer; it was among his highest forms of praise. The justices, of course, disagreed regularly and mightily after Roberts joined the bench. But that would hardly have stopped Stevens from endorsing, with the strength of a lifetime’s commitment, Roberts’ decision to vote against the President in the census case on the grounds that the Commerce Department was lying about its aims. The Court, Roberts quoted, is “not required to exhibit a naiveté from which ordinary citizens are free.”
Anachronistic it may seem, but Justice Stevens believed in such a thing as fact. And he believed it mattered, above all, to law. Would that we had him on the bench still.
Deborah Pearlstein is Professor and Co-Director of the Floersheimer Center for Constitutional Democracy at Cardozo Law School, where she teaches constitutional law, international law, and national security law. Her work on national security and the separation of powers has appeared widely in law journals and the popular press, and she has repeatedly testified before Congress on topics from military commissions to congressional war powers. A magna cum laude graduate of Harvard Law School, Pearlstein clerked for Judge Michael Boudin of the U.S. Court of Appeals for the First Circuit, then for Justice John Paul Stevens of the U.S. Supreme Court.