A former clerk for Supreme Court Justice John Paul Stevens, Emory U. Law Professor Robert Schapiro recalls the retiring justice as an intellectual mind who never lost sight of the individual despite the Court’s oft-perceived aloofness.
“Justice Stevens was concerned about the effects of cases on individuals and what the justice system meant to each person,” Schapiro said.
As reflected in his opinions and dissents, Stevens believed the Court should be open to all individuals, rich or poor, with no barriers of access or immunities for anyone, Schapiro said. Schapiro clerked for Stevens from August of 1991 to 1992 after sending out an application in his third year of law school.
Stevens, who announced his planned retirement on April 9 and will leave the Court when the summer recess begins, leaves behind a legacy of commitment to arriving at the right answer, Schapiro said.
“He looked at each case on its own to figure out the right answer without being especially concerned with how it would fit into some larger ideology,” Schapiro said. “He would always say to just do the right thing, and don’t worry about how it would be perceived, whether too liberal or too conservative. Just get the case right.”
According to Schapiro, Stevens subscribed to the belief that the bigger picture follows from properly deciding the individual cases — in other words, individual cases should not be decided based on how they fit into a larger view.
Some of Stevens’ most notable majority opinions include those written in Hamdan v. Rumsfeld (2006) and Clinton v. Jones (1997). In the former, Stevens upheld the view that the Constitution extended to those accused of engaging in terrorism. In Clinton v. Jones, the majority ruled that the president does not have immunity from a civil suit. Both cases articulated Stevens’ firm belief that no one should be excluded or exempt from the judicial system.
Schapiro said his experience clerking for Stevens included reviewing petitions for certiorari and working on drafting opinions. Clerks typically divide up the petitions received and write memos on those that merit analysis.
“It was nice that there’s no requirement on writing a memo for all petitions because you get the sense that the justice trusts your judgment on that,” Schapiro said. He said that since Stevens did not participate in the cert pool, where the memo written by one clerk circulates to all participating justices, he knew his memos were on important issues and were directly addressed to Stevens.
After opinions were assigned, Schapiro said, Stevens would pen the first draft before passing it on to his clerks.
“It was up to you to work on that opinion. That was frankly a daunting experience at first, and we felt constrained to change much or to expand on it,” Schapiro said. “But that’s what’s expected. You fill it in and have exchanges back and forth with the justice.”
During his clerkship, Schapiro worked on Planned Parenthood v. Casey (1992), which reaffirmed a woman’s right to abortion as established in Roe v. Wade (1973), among other cases.
Stevens’ departure from the Court grants President Obama a second opportunity to nominate a justice to the high court. The nomination and following confirmation process come at a time of notable polarization in Congress and will likely intersect with the midterm elections in the fall.
Several news sources have cited U.S. Solicitor General Elena Kagan, former Harvard Law School dean, as one of the frontrunners. Schapiro said Kagan would add an amount of diversity to the Court if nominated and confirmed, since she — unlike the currently sitting justices — has never served as a judge.
Schapiro said that while he has no particular preferred candidate on the short list, he hopes to see someone who remains similarly concerned with the effect of law on individuals.
“[Stevens] never lost sight of the role of law protecting individuals and on individuals. I hope his success maintains that focus,” Schapiro said.