“The Making of a Justice: Reflections on My First 94 Years”
by John Paul Stevens (Little, Brown and Company)
Former Justice John Paul Stevens served on the U.S. Supreme Court from 1975 until his retirement in 2010, the third-longest-serving justice in Ameri-can history. Appointed by President Gerald Ford, he joined the court under Chief Justice Warren Burger as a conservative, and left under Chief Justice John Roberts during President Obama’s first term as one of its leading liberal voices. In between, he published nearly 400 opinions for the court and more that 500 dissents.
In a new autobiography, “The Making of a Justice,” Stevens surveys his life before his appointment to the court — growing up in Chicago, and working as a naval traffic analyst at Pearl Har-bor during World War II and in private law practice.
But Stevens devotes the bulk of the book to reviewing key cases decided by the Supreme Court during his tenure. With 35 years on the bench, it’s quite a ride.
Some of the most interesting passages of the book deal with the backstory of some of the landmark cases decided during his tenure, in-cluding Bush v. Gore and District of Columbia v. Heller.
Stevens recounts watching the Florida recount in the 2000 presidential election unfold with interest, confident that the controversy was unlikely to reach the Su-preme Court — the Constitution, after all, expressly delegates the “time, place, and manner” of elections to the states. He was so confident, in fact, that he made plans to go out of town. He was shocked when a majority of the court rushed to intervene and to stay the Florida recount, effectively handing the presidency to George W. Bush. “I remain of the view that the Court has not fully recovered from the damage it inflicted on itself in Bush v. Gore,” he writes of the decision.
Stevens also took particular offense at the court’s decision in District of Columbia v. Heller, which construed the Sec-ond Amendment for the first time as forbidding reasonable regulation of guns. He notes that “colonial history contains many examples of firearm reg-ulations in urban areas,” all of which the court ignored in its rush to recognize a heretofore unknown personal right to bear firearms. In Stevens’ view, “Hel-ler is unquestionably the most clearly incorrect decision that the Court an-nounced during my tenure on the bench.” Stevens went on to author an op-ed after the Parkland shootings calling for a repeal of the Second Amend-ment.
A larger question running throughout the book is how to approach constitutional and statutory interpretation. The Constitution is written in sweeping terms, and statutes, too, are often imprecise — some-times due to poor drafting or political pressures, and sometimes intentionally to allow for broader application.
Typically, judges consider not only the text of the constitutional or statutory provision at issue but also its larger purpose and legislative history. But the late Justice Antonin Scalia was a fierce advocate of focusing solely on the text of a provision and how those words were understood at the time they were drafted.
Stevens was the strongest voice in opposition to this so-called “textualist” approach, pointing out that interpreting a constitution as fixed by the meaning of the words as they were understood at the time is itself a choice, and one that “is unfaithful to the expansive principle Americans laid down when they ratified the [Constitution]; … it countenances the most revolting injustices in the name of continuity, for we must never forget that not only slavery but also the subjugation of women and other rank forms of discrimination are part of our history … It is judicial abdication in the guise of judicial modes-ty.”
That debate continues to this day, even after Stevens’ retire-ment and Scalia’s death. With newer appointees venerating Scalia and his restrictive approach to our Constitution, it’s refreshing to consider Stevens’ common-sense rejoinder.
The Los Angeles Times once called Ste-vens a “national treasure.” At age 99, with this book, he cements that lega-cy.
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