Stevens, John Paul (1920–) (Update 1)

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STEVENS, JOHN PAUL (1920–) (Update 1)

In 1975, President gerald r. ford sought a "moderate conservative" of unimpeachable professional qualifications to fill the Supreme Court seat vacated by william o. douglas. John Paul Stevens of Chicago, an intellectually gifted antitrust lawyer, former law clerk to Justice wiley b. rutledge, occasional law professor, and federal court of appeals judge for the preceding five years, seemed to fit the bill. Justice Stevens in fact has more often been described as a "moderate liberal" of sometimes unpredictable or even idiosyncratic bent or as a "moderate pragmatist." A prolific writer of separate opinions frequently offering a different perspective, he generally is not a coalition builder. Even the common term "moderate" reflects his agreement in result with sometimes one and sometimes another more readily identifiable group of Justices on the Court or his balanced accommodation of community rights to govern and individual freedoms rather than his judicial substance or style.

Such labels usually mislead more than instruct, and in Justice Stevens's case conservative, moderate, and liberal strands of constitutional thought blend in a singular combination. He shares the judicial conservatism of Douglas's (and thus his) predecessor, Justice louis d. brandeis, who frequently urged the Court to reach constitutional questions only when necessary and to resolve constitutional disputes as narrowly as possible. He shares the moderate rationalist's antipathy to excessive generalization that Nathaniel Nathanson, Brandeis's law clerk and Stevens's admired constitutional law teacher, abhorred. He also shares the liberal substantive vision of Justice Rutledge, whom Stevens once admiringly described as a Justice who "exhibited great respect for experience and practical considerations," whose "concern with the importance of procedural safeguards was frequently expressed in separate opinions," and most importantly, who believed that "the securing and maintaining of individual freedom is the main end of society." Each of these elements of his intellectual lineage appear centrally in Justice Stevens's own constitutional writings.

His particular mixture of judicial restraint and vigorous judicial enforcement of individual liberty, although akin to those of Brandeis and Rutledge, sets Stevens apart from his contemporaries on both the burger court and the rehnquist court. His is not the judicial restraint of extreme deference to government authority, but the judicial restraint of limiting the occasions and the breadth of Supreme Court rulings, particularly when he concludes that a ruling is unnecessary to protect liberty. His adjudicative approach is to balance all the relevant factors in a particular context with thorough reasoning whose ultimate aim is resolving the particular dispute, not declaring broad propositions of law. Yet, because Stevens sees protection of liberty as a peculiarly judicial obligation, there is no conflict for him between judicial restraint and liberty-protecting judicial intervention, however narrow the basis of that intervention might be. Thus, his frequent criticism of "unnecessary judicial lawmaking" by his colleagues, although it extends to reliance on any intermediate doctrinal standard of review that is a judicial gloss on constitutional text, is most bitterly voiced when judge-made doctrines stand in the way of vindicating individual freedom. In Rose v. Lundy (1982), for example, his dissent objected to several judicially imposed procedural obstacles to federal habeas corpus review of claims of fundamental constitutional error in the conviction of state criminal defendants. In contrast, Stevens, always sensitive to matters of degree, expressed his inclination to address constitutional claims more readily the more fundamental they are and to husband scarce judicial resources for the occasions when judicial action is most acutely needed. Accordingly, he urged the Court to confine "habeas corpus relief to cases that truly involve fundamental fairness."

The same preference for employing judicial power to secure and maintain individual freedom, rather than to vindicate government authority, appears in other positions he has taken on the proper scope of the Court's institutional role. He has waged a lengthy, but largely unsuccessful, battle to convince the court to curtail its use of discretionary certiorari jurisdiction to review cases in which the claim of individual liberty prevailed in lower courts. In new jersey v. t. l. o. (1984) he inveighed against the court's "voracious appetite for judicial activism in its fourth amendment jurisprudence, at least when it comes to restricting the constitutional rights of the citizen." to stevens, the court should not be concerned with legitimating prosecution practices or other governmental controls that lower courts have erroneously restricted through overly generous interpretations of federal law. in general, he sees dispersal of judicial power as a positive good, especially when state courts restrain state officials from interfering with individuals, even when those courts have applied the federal constitution more stringently than the supreme court might. he has argued with respect to stare decisis that the Court should adhere more readily to prior rulings that recognized a liberty claim than to those that rejected one. Similarly, he appears more likely to find a "case or controversy" calling for decision on the merits in an individual challenge to government action than in review of a claim that the government's prerogatives have been unreasonably limited. This distinction can be seen in a comparison of his dissents on the issue of standing in allen v. wright (1984) and Duke Power Co. v. Carolina Environmental Study Group (1978). Similarly, he has argued for reduction in the Court's reliance on the doctrine of " harmless error, " which allows convictions to be affirmed where arguably nonprejudicial error has occurred; in his view, saving convictions should have a low priority.

His substantive conception of the source and content of constitutional liberty is as distinctive as his view of the systemic judicial role in protecting it. Unlike protections for property rights, which Stevens agrees originate in positive law, he believes liberty stems from natural law. His dissents in Hewitt v. Helms (1983) and Meachum v. Fano (1976) illustrate his belief that even justifiably confined inmates retain claims to liberty, including the right to be treated with dignity and impartiality. The source of that liberty "is not state law, nor even the Constitution itself." Rather, drawing on the declaration of independence, he found it "self-evident that all men were endowed by their Creator with liberty as one of the cardinal inalienable rights." Not surprisingly, given this view, he has embraced judicial recognition of a wide spectrum of textually unenumerated fundamental liberties that cannot be infringed without strong justification, including those implicated by criminal and civil commitment proceedings, termination of parental rights, loss of citizenship, restrictions on abortion and consensual sex, and laws limiting prisoners' rights to refuse antipsychotic drugs and terminal patients' rights to refuse unwanted, life-prolonging medical intervention. As to the last, his dissent in Cruzan v. Missouri Department of Health (1990) opined that "choices about death touch the core of liberty" and are "essential incidents of the unalienable rights to life and liberty endowed us by our Creator" and that the "Constitution presupposes respect for the personhood of every individual, and nowhere is strict adherence to that principle more essential than in the Judicial Branch." Stevens has been particularly distressed by the Court's rejection of a wide liberty to retain counsel in government-benefit disputes and the right to government-provided counsel in proceedings to terminate parental status, because he thinks these rulings substantially undervalue the fundamental liberty of legal representation. Of his general approach, he has written that judges are to use the common-law method of adjudication to ascertain the content of liberty: "The task of giving concrete meaning to the term 'liberty,' like the task of defining other concepts such as 'commerce among the States,' 'due process of law,' and 'unreasonable searches and seizures,' was a part of the work assigned to future generations of judges."

Contained in his conception of liberty are government obligations of impartiality, rational decision making, and procedural fairness. These obligations are tempered, however, by two factors. First, Justice Stevens is willing to search broadly for acceptable regulatory justifications, especially the justification that a particular regulation enhances rather than diminishes liberty. Second, he is a candid, interest balancer, willing to distinguish among degrees of liberty and degrees of regulatory interference, as well as among degrees of strength of governmental interests to be served. The result is to give government at least some leeway. Moreover, he would hold judges to at least the same level of obligation, a fact that sometimes enlarges the regulatory freedom of political actors. Thus, although Justice Stevens starts from the presumption that government must justify its interference with liberty, rather than a presumption of judicial deference to regulation, he can be quite generous in accepting certain forms of regulation.

For Stevens, government treatment of individuals as equals with dignity and respect is a portion of their liberty, not just a derivation of the equal protection clause of the fourteenth amendment. His particular brand of equality analysis would eschew judicial searching for biased subjective motivations of decision makers in favor of an inquiry into whether a law's objectively identifiable purposes are legitimate and sufficiently served. His aversion to motive inquiry is founded largely on two concerns: judges lack capacity to assess motivation accurately and reliance on motive might mean that identical laws would be valid in one jurisdiction and invalid in another, depending on their sponsors' motives. Lack of nationwide uniformity of federal constitutional restraints on regulatory power is anathema to Stevens because it tends to undermine the judicial obligation of evenhandedness.

Justice Stevens opposes the Court's longstanding articulation of different tiers of equal-protection review depending on the nature of the group disadvantaged. He also opposes sharply differentiating between discriminatoryintent and disproportionate impact as the dividing line between permissible and impermissible laws. Sacrificing guidance to others for sensitive analysis—an easy accommodation for one who sees the judicial role as dispute resolution, not pronouncement of law—he would consider such factors relevant, but not determinative. Instead of categories, he insisted in craig v. boren (1976) that there is "only one Equal Protection Clause" and that its requirement is "to govern impartially." To be impartial, classifications may not be based on insulting assumptions or allow "punishment of only one of two equally guilty wrongdoers," as he wrote in dissent in michael m. v. superior court (1981). His version of impartiality requires that people be treated as equals in dignity and moral respect, not that they necessarily receive equal treatment; so that unlike the "insulting" law held invalid in Craig, which forbade young men, but not young women, from buying beer, and the statutory rape law that he would have invalidated in Michael M., which punished only males, he voted in rostker v. goldberg (1981) to uphold Congress's male-only draft law—a law that did not assume greater moral culpability of males than females.

When assessing impartiality, Justice Stevens would also consider whether persons other than the complainants are disadvantaged and whether members of the complaining group could rationally support the disadvantaging classification. Thus, he refused to invalidate a veterans' preference for jobs in personnel administrator of massachusetts v. feeney (1979), despite its disproportionately disadvantageous effect on women, because the law also disadvantaged nonveteran men in large numbers. And in cleburne v. cleburne living center, inc. (1985) he left open the possibility that some restrictive regulations based on mental retardation might be permissible because a mentally retarded person, like an impartial lawmaker, could accept some regulation to protect himself or herself, or others.

Attention to the full composition of the disadvantaged group and to their views is related to political limits on discrimination and treatment with moral respect. In particular, adjusting judicial aggressiveness to the level of political protection that a constitutional challenger might otherwise have available pervades Justice Steven's jurisprudence. Most obviously, this view of the judicial function underlies his preference for reserving judicial power for vindicating the constitutional claims of individuals, not government. Less obviously, it is also reflected in his fervor for addressing the substence of unpopular claims, especially those raised by prisoners, to whose conditions politicians are seldom responsive. Conversely, Justice Steven is unlikely to overturn arrangements that disadvantage those with considerable political clout. His majority opinion in Lying v. Catillo (1986) upholding a food-stamp policy that disfavored close relatives in contrast to more distant relatives noted that families are hardly politically powerless. Outside the equal-protection arena, similar considerations explain his support of the current Court position that judicial enforcement of tenth amendment limits on Congress's power to regulate the State is generally inappropriate given the states' ability to apply political pressure in Congress. On similar ground, he agreed in goldwater v. carter (1979) that, given congressional power to protect its perogatives, whether the President may terminate a treaty with a foreign power without Senate consent is a nonjusticable "political question." Likewise in United States v. Munoz-Flores (1990) he argued unsuccessfully that the Court should not address a claimed violation of the constitutional provision requiring revenue bills to originate in the House of Representatives. It is the "weakest imaginable justification for judicial invaliadation of a statue" to contend "that the judiciary must intervene in order to protect a power of the most majoritarian body in the Federal Government, even though that body has absolute veto over any effort to unsurp that power." In yet another sphere he was the sole dissenter from the ruling in Davis v. Michigan Department of Treasury (1989) that a state may not extend a tax on employee retirement benefits to retired federal employees if the state and local retirees are exempt. So long as the state taxed retirement benefits of private sector employees—"the vast majority of the voters in the State"—he thought the tax on federal retirees was allowable.

The obligation of impartiality also embraces another theme that extends beyond the realm of equal protection: judges should not adopt constitutional standards that themselves risk arbitrary or uneven treatment. Evenhandedness does not mean equal concern for governmental power and individual liberty, but equal liberty for all. This is a judicial obligation that sometimes has led Justice Stevens to limit, and sometimes to approve, governmental regulation. For example, unlike his colleagues, who tend either to favor or disfavor bothestablishment of religion and "free exercise of religion" arguments, he is simultaneously receptive to claims of strict separation of church and state, but unreceptive to claims that the free-exercise clause requires exemption from generally applicable laws for religiously motivated conduct. His singular stance appears grounded in an emphasis on evenhandedness. To Justice Stevens, preference for one religion over another or seeming endorsement of a limited set of religions that would offend others, violates the government's obligation of religious neutrality imposed by the establishment clause. In contrast, neutral laws that apply generally do not impugn governmental evenhandedness, and religion-based claims to a selective exemption would reintroduce this problem. Accordingly, he concurred in decisions refusing to exempt the Amish from paying social-security taxes, an Orthodox Jew from an Air Force regulation barring headgear indoors, and members of the Native American Church from a ban on drug use, including peyote, which they smoked as part of a religious ceremony.

A similar emphasis on evenhandedness surfaces in his public forum and other free-speech opinions, with alternately restrictive and permissive results. As with equal-protection standards of review, Justice Stevens doubts the value of public forum doctrine to resolve first amendment issues of access to public property for free speech. But he is simultaneously intolerant of viewpoint discrimination and tolerant of broad but neutral exclusions of expression from public property. His majority opinion in Los Angeles v. Taxpayers for Vincent (1984) upheld an ordinance broadly banning posting of signs on public property after noting its viewpoint neutrality and its evenhanded enforcement. He rejected a claim for exemption of political signs because such an exemption "might create a risk of engaging in constitutionally forbidden content discrimination." Similarly, although he has adamantly opposed prohibitions on speech when the government's justification rests solely on the offensiveness of the message, he accepts restrictions designed to maintain government neutrality in the marketplace of ideas, even though the restrictions significantly lessen speech. This distinction is explained in FCC v. League of Women Voters (1984), where he dissented from the Court's invalidation of Congress's ban on all editorializing by publicly funded broadcasters. Finally, he is particularly critical of the Court's judge-made standards for defining obscenity unprotected by the First Amendment. As he wrote in his separate opinion in Marks v. United States (1977), those standards "are so intolerably vague that evenhanded enforcement of the law is a virtual impossibility," and "grossly disparate treatment of similar offenders is a characteristic of the criminal enforcement of obscenity law."

Justice Stevens's evenhandedness standard does not completely reject qualitative assessments of the comparative value of different kinds of speech. In particular, if speech is of limited social value, and its form, rather than its viewpoint, is found offensive—a distinction he, but not others, can perceive as viable—he would acknowledge government's right to regulate its nuisance effects, although probably not to ban it altogether. In accepting zoning laws restricting the location of businesses offering "almost but not quite obscene" materials, and in permitting the Federal Communications Commission to declare that a profane radio broadcast during the day might be disciplined, Justice Stevens took explicit account of the low value of the speech, as well as of the limited nature of the governmental restriction. He concluded that the justification for both restrictions was offensiveness of the form of communication, not the message. In the profanity case, federal communications commission v. pacifica foundation (1978), he reasoned that it is "a characteristic of speech such as this that both its capacity to offend and its 'social value' … vary with the circumstances."

The moderating tendency of accepting regulation of limited intrusiveness into liberty of lesser dimension so long as discernible, nonrepressive governmental puposes are present has often led Justice Stevens to emphasize the validity of civil nuisance-type regulations where he might find criminalization unacceptable. Indeed, there is evidence that he would uphold innovative moderate forms of regulation as a means of accommodating the tension between individual freedom and the right of communities to protect against the harm that exercising such freedom may do to others. There is much of john stuart mill in Justice Stevens's severely limited view of government power to restrain individual liberty that does no tangible harm to others, but his more generous view of government's power to protect against the nuisance effects of unrestrained freedom. This view is evident not only in his obscenity opinions and opinions regarding civil damages for recovery for libel such as Philadelphia Newspapers, Inc. v. Hepps (1986), but also in opinions addressing whether regulation of private property constitutes a deprivation of property without due process or a " taking of property " requiring payment of just compensation. In moore v. east cleveland (1977), for example, he separately concurred in the Court's judgment invalidating the city's single-family zoning ordinance, which defined a family to exclude a grandmother and two grandsons who were cousins to each other. In that opinion he located the ordinance's constitutional defect in its interference with the grandmother's "right to use her own property as she sees fit" with respect to the "relationship of the occupants." He distinguished zoning ordinances forbidding unrelated individuals from living together as legitimately based on controlling transient living arrangements that arguably might impair a sense of permanence in the community. Stevens generously approaches zoning ordinances based on arguable external effects, but is unsympathetic to those that fail to accord the reciprocal advantages to all in the community that zoning regulations normally create. These views are reflected in his majority opinion allowing an uncompensated prohibition on coal mining that would cause subsidence of others' property in Keystone Bituminous Coal Association v. DeBendictis (1987), from which Chief Justice william h. rehnquist dissented. The same views surely explain his joining of Rehnquist's dissent in penn central transportation co. v. new york city (1978), which upheld a historic landmarks-preservation law as applied to prevent development in the airspace above Grand Central Terminal. Moreover, Stevens's tendency to allow moderate regulation of the use of property that affects others and his openness to a wide scope of legitimate, potentially innovative forms of regulation, underlies his dissenting view in First English Evangelical Lutheran Church v. Los Angeles (1987). He believed that the government should not be obligated to pay for the loss of property use during the temporary period that a land-use regulation is challenged as a compensable "taking." He was concerned that if government was required not only to lift its regulation, but also to pay for the loss during the period of the constitutional challenge, officials would be deterred from acting, and "the public interest in having important governmental decisions made in an orderly informed way" would be sacrificed.

A final distinctive theme of Justice Stevens—one he admired in Justice Rutledge—is that, even if government decision makers have broad latitude in choosing what goals to pursue and considerable discretion in choosing the means to achieve them, judges should carefully review the decision-making process to assure that the responsible officials sufficiently considered the rights of those whose constitutional interests are sacrificed. Moreover, his version of this "due process of lawmaking," which sometimes provides procedural safeguards in lieu of substantive limitations, tailors the intensity of the required process to the magnitude of the liberty and equality interests implicated by the decision or policy. His capital punishment opinions illustrate this concern, as well as his reluctance to narrow government goals and his deep attachment to impartiality. He would not prohibit imposition of the death penalty altogether, but he supports a variety of significant limitations on the process of its administration to limit arbitrariness. He insists on narrowing the category of those eligible for capital punishment, policing against its racially disproportionate infliction, and limiting, through defined and acceptable criteria, discretion of the prosecution to seek death sentences and discretion of the jury to impose them. He would not permit any death sentence not approved by a jury—in his view, the only acceptable voice for so irrevocable an expression of the community's sense of moral outrage. Furthermore, although he finds individualized guided jury discretion essential in all cases, he would preserve the jury's absolute discretion to spare life, as his powerful dissents in Spaziano v. Florida (1984) and Walton v. Arizona (1990) demonstrate.

Justice Stevens has expressed this preference for a calibrated review of process in a variety of circumstances. He readily protects the foundational rights of free and equal political participation against governmental action that would distort a fair political regime, just as he would broadly uphold governmental efforts to protect the purity of the political process. Not only do his influential and forceful opinions favoring constitutional limits on partisan gerrymandering and political patronage in cases like Karcher v. Daggett (1983), Davis v. Bandemer (1986), and branti v. finkel (1980) reflect this; so do his concurring opinion favorable to government-imposed anticorruption limits on corporate expenditures to support candidates in austin v. michigan chamber of commerce (1990), his dissent from the Court's refusal to extend the federal mail-fraud statute to cover deprivation of rights to honest government in McNally v. United States (1987), and his unwillingness in dissent in brown v. socialist workers '74 campaign committee (1982) to require a First Amendment exemption for the Socialist Workers Party from a law mandating that political parties disclose their contributors. Not consistent judicial deference, but an overriding concern for a properly functioning political system, underlies his alternately restrictive or generous view of political efforts at domination or reform.

As many of these opinions suggest, he would require fair process for application as well as formulation of law, process whose demands increase the more fundamental the interest at issue. His dissent in bethel school district v. fraser (1986) acknowledged that school officials could consider the content of vulgar speech in setting rules of student conduct, but especially since speech was involved, he would not have allowed a student who made sexually suggestive remarks at a school assembly to be suspended without sufficient warning that his speech would provoke punishment. He would also distinguish between the process fit for legislation and that suited for adjudication. Dissenting in City of Eastlake v. Forest City Enterprises (1976), he would have found "manifestly unreasonable" a requirement that zoning changes be approved by fifty-five percent of the vote in a city-wide referendum. He insisted that "[t]he essence of fair procedure is that the interested parties be given a reasonable opportunity to have their dispute decided on the merits by reference to articulable rules." Although he had "no doubt about the validity of the initiative or the referendum as an appropriate method of deciding questions of community policy," he thought it "equally clear that the popular vote is not an acceptable method of adjudicating the rights of individual litigants."

A distinctive element of Stevens's expectation of a rational decision-making process is found in his oft-noted inventive opinion in hampton v. mow sun wong (1976), which insisted that if questionable policies are to be implemented, at least the appropriate authority must adopt them. His plurality opinion invalidated a rule barring employment of aliens in the federal civil service, not because it violated equal protection, but because it was adopted by the Civil Service Commission to serve governmental interests that only the President or Congress could assert. More generally, he adheres closely to a constitutional vision in which all government officials, including judges, carry out the responsibilities particularly assigned to them. Several opinions aim to prevent Congress from abdicating its policymaking responsibilities. One is his separate concurrence in bowsher v. synar (1986), arguing that although "Congress may delegate legislative power to independent agencies or to the Executive," if it elects to exercise lawmaking power itself, it cannot "authorize a lesser representative of the Legislative Branch to act on its behalf," but must follow the normal process of enactment by both Houses of Congress and presentment to the President. In that case, Congress had inappropriately given power under the grammrudman-hollings act to the comptroller general, one of its own agents, to make important economic policy that binds the nation. Similarly, in his plurality opinion in Industrial Union Department v. American Petroleum Institute (1980), Stevens interpreted the Occupational Health and Safety Act to prohibit the secretary of labor from adopting standards for controlling potentially hazardous substances unless reasonably necessary to prevent significant harm in the workplace, rather than to achieve absolute safety. Construing Congress's intent more broadly would assume a delegation of "unprecedented power over American industry" that might constitute an unconstitutional transfer of legislative power—a conclusion that Justice Rehnquist's concurrence embraced.

Finally, Justice Stevens's vision of the minimal elements of an acceptably rational decision-making process builds on his presumption that government must justify its actions and entails a realistic appraisal of whether an identifiable and legitimate public purpose supports the challenged act, even if that purpose is not identified by the decision maker itself. Although broadly defining the legitimate goals that government may pursue—particularly including latitudinous conceptions of environmental or aesthetic improvements in the quality of community life and programs providing veterans benefits—he will not strain his imagination to prop up conduct that realistically could not have been aimed at legitimate objectives. Thus, he is not loath to ferret out protectionist state purposes that are invalid under the dormant commerce clause or the absence of secular purposes for religion-connected decisions that are invalid under the establishment clause. Moreover, he condemns harmful classifications adopted out of "habit, rather than analysis," as he shows in several of his opinions involving sex discrimination and distinctions based on legitimacy of birth. Although he will not impose on legislative bodies a duty to articulate their "actual purposes" for legislation, he will not accept, as a majority of the Court does, any "plausible" or "conceivable" purpose. Rather, as he wrote in his separate concurrence in United States Railroad Retirement Board v. Fritz (1980), he demands "a correlation between the classification and either the actual purpose of the statute or a legitimate purpose that we may reasonably presume to have motivated an impartial legislature." As his lone dissenting opinion in Delaware Tribal Business Committee v. Weeks (1977) demonstrates, it is not enough for him that a disadvantaging classification is not invidious; it cannot be neglectful, purposeless, or unthinking.

Several of these themes coalesce in his otherwise seemingly inconsistent pattern of positions in the Court's affirmative action cases. He dissented in fullilove v. klutznick (1980) from the Court's sustaining of Congress's setting aside ten percent of public works employment funds for minority business enterprises, largely because Congress gave only "perfunctory consideration" to a racial classification of "profound constitutional importance." He detected a decision illegitimately based on pure racial politics, generally urged that "the procedural character of the decisionmaking process" should affect any constitutional assessment, and specifically insisted that "because classifications based on race are potentially so harmful to the entire body politic, it is especially important that the reasons for any such classification be clearly identified and unquestionably legitimate." He did not assume that all race classifications were impermissible, however, and in wygant v. jackson board of education (1986) he dissented from the invalidation of a race-based preference for minority teachers contained in a lay-off provision of a collective bargaining agreement. Here he thought the interests of the disadvantaged white teachers were adequately represented and considered in the collective-bargaining process. He also urged that the validity of racial classifications must not be evaluated solely in relation to the justification of compensating for past discrimination, but also by considering their relevance to any valid public purposes, including achievement of the benefits of future diversity—a position subsequently adopted by the Court in metro broadcasting, inc. v. federal communications commission (1990). In fact, he suggested in his concurring opinion in richmond (city of) v. j. a. croson company (1989), where he voted to nullify the city's Fullilove -style set-aside program, that "identifying past wrongdoers" and fashioning remedies for past discrimination is better suited to judicial than to legislative bodies.

Matching purposes to appropriate decision makers and requiring deliberation adequate to the liberty affected, yet remaining open to a multiplicity of valid governmental objectives, are essential characteristics of this rational, liberty-devoted and open-minded judge.

Jonathon D. Varat


Burris, Scott 1987 Death and a Rational Justice: A Conversation on the Capital Jurisprudence of Justice John Paul Stevens. Yale Law Journal 96:521–546.

Carlson, Jonathan C. and Smith, Alan D. 1976 The One Hundred and First Justice: An Analysis of the Opinions of Justice John Paul Stevens, Sitting as a Judge on the Seventh Circuit Court of Appeals. Vanderbilt Law Review 29:125–209.

——1978 The Emerging Constitutional Jurisprudence of Justice Stevens. University of Chicago Law Review 46:155–213.

——1987 Justice Stevens' Equal Protection Jurisprudence. Harvard Law Review 100:1146–1165.

O'B rien, David M. 1989 Filling Justice William O. Douglas's Seat: President Gerald R. Ford's Appointment of Justice John Paul Stevens. Supreme Court Historical Society Yearbook 1989:20–39.

Sickels, Robert Judd 1988 John Paul Stevens and the Constitution: The Search for Balance. University Park and London: The Pennsylvania State University Press.

Stevens, John Paul 1983 The Life Span of a Judge-Made Rule. New York University Law Review 58:1–21.

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