Five Opinions That Show Justice Stevens’s Greatness

Stephen L Carter

18 Jul 2019, 01:01 PM IST

(Bloomberg Opinion) -- I first met Justice John Paul Stevens in 1979, when he interviewed me for a clerkship. I didn’t get the job, but I did get to partake of his wisdom. He repeated the words of former Justice Louis Brandeis, who, when asked what made the Supreme Court different from other branches of government, famously replied, “We do our own work.” In particular, Stevens believed justices should always write their own opinions. That was why he hired fewer law clerks each term than the other justices: to help him resist the temptation to have others do his work for him.

Given this strongly held view, I thought I might commemorate the career of the great justice, who died Tuesday at the age of 99, by briefly discussing five of his majority opinions. I’ve selected five that I suspect few readers, even those who are lawyers, will be familiar with — but all five carry lessons for today.

In 2002, in Watchtower Bible and Tract Society v. Village of Stratton, the justices ruled that an ordinance requiring a permit prior to any door-to-door solicitation violated the First Amendment. Stevens’s opinion for the majority fascinates, not for the result, which was surely a foregone conclusion, but for a key part of the rationale: the right to advocate and solicit anonymously. “There are a significant number of persons who support causes anonymously,” he wrote. “The decision to favor anonymity may be motivated by fear of economic or official retaliation, by concern about social ostracism, or merely by a desire to preserve as much of one’s privacy as possible.”

To be forced to apply for a permit before going door-to-door, Stevens wrote, “necessarily results in a surrender of that anonymity.” In our own era of doxxing, social media bans and deplatforming, Stevens’s words should resonate.

Speaking of the First Amendment, Stevens also wrote the unanimous 1994 opinion in City of Ladue v. Gilleo, striking down an ordinance prohibiting homeowners from displaying most signs on their property. A resident got in trouble after posting a two-foot high sign on her front lawn protesting the Gulf War. Stevens wrote that the ordinance was unconstitutional in part because some signs (such as “for sale” signs) were exempt, and in part because it restricted use of “a venerable means of communication that is both unique and important.” That means — the lawn sign — was “totally foreclosed ... to political, religious, or personal messages.” Yet messages expressing views “on a controversial issue” were important because they served to “reflect and animate change in the life of a community.”

The lesson for our day could hardly be clearer.

In Rivera v. Minnich (1987), the justices upheld a Pennsylvania law under which the standard for proving paternity was a preponderance of the evidence. The defendant, who denied being the father, argued that the Constitution required that paternity be shown by clear and convincing evidence — the standard the Supreme Court earlier mandated for the termination of parental rights.

Much of Stevens’s opinion for the court dealt with history, but he found the space to zing the putative father, whose denial of paternity Stevens characterized as “a disavowal of any interest in providing the training, nurture, and loving protection that are at the heart of the parental relationship protected by the Constitution.” Take all of that away, wrote Stevens, and the dispute was reduced to an argument over money. By denying paternity, it was the putative father himself who made the case just like any other lawsuit.

In 1992, Stevens wrote for the Court in Church of Scientology of California v. United States, a case about the limits of government power. The dispute arose from a battle over tape recordings of conversations between church leaders and their attorneys. The Internal Revenue Service demanded the tapes as part of an investigation of the church; the church responded that the conversations were protected by attorney-client privilege. For complicated legal reasons, the tapes were in the actual custody of the clerk of a state court. A federal judge ordered the clerk to turn the tapes over to the IRS and the church appealed.

The government made the remarkable argument that the appeal should be dismissed as moot. Since the tapes were already in the possession of the IRS, the government’s theory ran, it made no difference whether the original seizure had been unlawful. IRS agents had already examined the tapes, so the damage was done. Thus there was nothing to appeal.

No non-lawyer would take this bizarre contention seriously — the slippery-slope argument pretty much writes itself — but the U.S. Court of Appeals for the Ninth Circuit endorsed the government’s theory. Happily, the Supreme Court saw the claim for the nonsense that it was. Writing for a unanimous court, Stevens explained why.

It was true, he admitted, that “there is nothing a court can do to withdraw all knowledge or information that IRS agents may have acquired by examination of the tapes.” But the church, like any taxpayer, still retained “an obvious possessory interest” in its records. And that matters: “When the Government has obtained such materials as a result of an unlawful summons, that interest is violated and a court can effectuate relief by ordering the Government to return the records.”

Nor could the IRS keep copies, because “the Government’s continued possession” of the tapes would constitute an “affront to the taxpayer’s privacy.”

One can hardly overstate the importance of this result. Had the court held otherwise, a government agency could seize your records on whatever pretext it chose, yet resist an order to destroy any copies it had made on the ground that the damage was already done. Of such bricks and mortar is the wall of privacy constructed.

Last, consider Stevens’s final opinion for the court, New Process Steel v. National Labor Relations Board, handed down on June 17, 2010. The case arose from the refusal of the Senate to confirm President George W. Bush’s nominees to the NLRB. With the terms of other members expiring, the board basically delegated its authority to as few as two members who would remain to take action.

This, wrote Stevens, was impermissible. The process by which a decision is reached is as important as the substance, and the NLRB could only act with its mandated quorum of three. The underlying statute, Stevens concluded, “does not authorize the Board to create a tail that would not only wag the dog, but would continue to wag after the dog died.”

That’s the other thing about Justice Stevens. The man who did his own work knew how to write great prose. There’s a lot less of that on the Supreme Court than there used to be. The court is worse for it.

To contact the editor responsible for this story: Michael Newman at mnewman43@bloomberg.net

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Stephen L. Carter is a Bloomberg Opinion columnist. He is a professor of law at Yale University and was a clerk to U.S. Supreme Court Justice Thurgood Marshall. His novels include “The Emperor of Ocean Park,” and his latest nonfiction book is “Invisible: The Forgotten Story of the Black Woman Lawyer Who Took Down America's Most Powerful Mobster.”