Posted by: Rutgers-Camden | April 30, 2010

Stevens retirement a “poignant moment” for Rutgers–Camden law professor

Perry Dane

Perry Dane is a professor at the Rutgers School of Law–Camden, where he teaches classes in Constitutional Law and Law and Religion. He is a former clerk for U.S. Supreme Court Justice William Brennan. Justice John Paul Stevens was the last of the nine justices who sat on the Supreme Court during Dane’s clerkship.

I clerked for United States Supreme Court Associate Justice William J. Brennan, Jr. during the court’s 1982-83 term.  I hate to admit that, ever since, one way I’ve marked the passage of time, and my own graying, is by the departure every few years of yet one more Justice who served on the Court when I worked there.  (I won’t even bring up David Souter, the only Justice – so far – who both joined the Court and then left it after my stint).  So the retirement of Justice John Paul Stevens will be an especially poignant moment for me.  For he is the last remaining member of the nine Justices who sat on “my” Court almost thirty years ago.

Justice Stevens is being lauded as the dean of the “liberal wing” of today’s Supreme Court.  But that’s not quite how I remember him.  He was smart.  He was sharp and quick.  He was incredibly nice.  He was hard-working and methodical, one of the few Justices who wrote the first drafts of his own opinions, and the only who decided he needed only two clerks instead of the four to which he was entitled.  But, although Justice Stevens often sided with my boss, who was the reigning leader of the “liberal wing” of the time, he was by no means a reliable vote.  Justice Stevens was, by conventional measures, closer to the middle of the Court’s ideological spectrum.  More to the point, though, we thought of Justice Stevens as unpredictable.  He was entirely independent-minded, even idiosyncratic.  He was a genuine maverick.  And his views were often intellectually bracing.One case the Court decided my year is of local interest at Rutgers–Camden.  It involved the late Marc Feldman, who went on to teach for a time here at the law school.  Feldman was a lawyer without a degree from a law school.  Following a once-traditional path to the bar, he went through a program of study in the office of a practicing attorney and audited some courses at the University of Virginia Law School.  For the last six months of his education, he clerked for a federal judge.  All this was good enough to get Feldman admitted to the Bars of Virginia and Maryland.  But the local District of Columbia high court rigidly enforced a rule requiring that members of its Bar have graduated for an approved law school.  Feldman sued the D.C. court in federal district court.  The case made its way to the Supreme Court, where Justice Brennan wrote an opinion dismissing most of Feldman’s suit because the proper avenue to appeal a state (or D.C.) judgment is by seeking review in the Supreme Court, not by suing the state high court in a lower federal court.

This was not a controversial result on the Court.  Justice Brennan’s majority opinion got eight votes out of nine.  But Justice Stevens dissented.  He didn’t disagree with the general principle, but thought that the Court had misapplied it in Feldman’s case.  His dissenting opinion was short but analytically sharp.  I hate to admit it, but he might have been right.

Even Justice Stevens was not alone on an outcome; he often wrote separately because his reasoning was different from that of any other Justice.  Consider Michigan v. Long, a search and seizure case.  The majority of the Court upheld a particular police search of an automobile, reversing a decision of the Michigan Supreme Court.  Justice Brennan dissented on the constitutionality of the search, joined by Justice Thurgood Marshall.  Justice Stevens also dissented.  But his argument was not about the search.  The Michigan Supreme Court had relied on both the United States and Michigan Constitutions, without making it clear whether the Michigan Constitution by itself would have required the result.  The other eight Justices on the U.S. Supreme Court, majority and dissenters alike, thought that they could review the federal portion of the Michigan decision.  Justice Stevens argued that this showed insufficient respect to the sovereignty of Michigan, and that no federal interest was served in reviewing a state decision that, rightly or wrongly, vindicated the constitutional claims of one of the State’s own citizens.

Finally, I remember well the Court’s consideration of the constitutionality of prayers by legislative chaplains under the Establishment Clause of the First Amendment.  The case was Marsh v. Chambers.  The majority upheld the practice of official invocations – prayer – recited by chaplains at the beginning of the Nebraska state legislature’s day.  Justice Brennan dissented, again joined by Justice Marshall.  Our dissent argued that the Establishment Clause functioned in part to prevent the “trivialization and degradation of religion by too close an attachment to … government.”  Prayer, any prayer, is “serious business,” too serious and theologically fraught to become part of an official civic ritual.  Justice Stevens also dissented.  But he focused on the sectarian character of the particular prayers at issue and the legislature’s decision to keep a single chaplain representing a single faith in office for sixteen years. 

I actually think, this time, that Justice Stevens was wrong.  In fact, I think that his approach in many religion cases didn’t quite get it, at least from my perspective as someone who thinks and writes about these issues.  (I continue to believe that the Establishment Clause, though it incorporates a powerful anti-sectarian principle, is also at its heart an effort to nurture the potential for a religious society by insisting on a largely secular government.)  Certainly, at the time, we were a mite peeved that Stevens went off on his own and didn’t join Justice Brennan’s dissent.  But Stevens’s concern was clarity and rigor and truth, as he understood them, not just racking up numbers for one coalition or another.  And his view of the religion clauses, articulated in many cases, has been sharp-edged and consistent.

Over the years, Justice Stevens seemed to become less of a maverick, and more of a leader of one wing of the Court.  Maybe the departure of the old-line “liberals,” especially Brennan and Marshall, prompted him to a different vision of his role.  Or maybe Justice Stevens didn’t change at all.  He’s never lost that twinkle in his eye, that deep intelligence and sense of precision that he displayed – sometimes frustratingly from our view in the Brennan chambers – almost thirty years ago.  Maybe, like some of the greatest Justices, he was simply ahead of his time, and accumulated more allies as the years went by.

For me, the departure of Justice Stevens will be an end of an era, the final disappearance of “my” Court.  More important, it will mark the end of one man’s remarkable and lasting contributions to the work of an institution that, regardless of the era, is always at the center of the nation’s ongoing debate about its most enduring values.

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