https://www.law.com/nationallawjournal/2019/07/16/justice-john-paul-stevens-who-left-us-a-better-nation-dies-at-99/

Marcia Coyle writes in the National Law Journal:

Justice John Paul Stevens, whose decisions during almost 35 years on the U.S. Supreme Court triggered a revolution in criminal sentencing and curbed government overreach in the war on terror, died on Tuesday evening at Holy Cross Hospital in Fort Lauderdale, Florida. He was 99.

Stevens died of complications following a stroke that he suffered on July 15, according to a statement from the Supreme Court’s public information office. His daughters were by his side.

Chief Justice John G. Roberts Jr. said of Stevens:

“On behalf of the court and retired Justices, I am saddened to report that our colleague Justice John Paul Stevens has passed away. A son of the Midwest heartland and a veteran of World War II, Justice Stevens devoted his long life to public service, including 35 years on the Supreme Court. He brought to our bench an inimitable blend of kindness, humility, wisdom, and independence. His unrelenting commitment to justice has left us a better nation. We extend our deepest condolences to his children Elizabeth and Susan, and to his extended family.”

Shortly after retiring from the high court in June 2010, Stevens, described by one legal scholar as “one of the most articulate, disciplined and accomplished” justices in U.S. history, “made clear that he still had a “lot to say.”

Over the next nearly 10 years, the indefatigable nonagenarian wrote three books and gave numerous speeches around the country in which he critiqued past and current Supreme Court decisions.

In “Five Chiefs: A Supreme Court Memoir,” he chronicled his experiences with chief justices from his time as a Supreme Court clerk in 1947 until his retirement as an associate justice. His favorite chief, he later said, was the current one—Chief Justice John Roberts Jr.

And in “Six Amendments: How and Why We Should Change the Constitution,” he proposed ways to change the founding document because “rules crafted by a slim majority of the members of the Supreme Court have had such a profound and unfortunate impact on our basic law that resort to the process of amendment is warranted.”

His proposed amendments would, among other tasks, hasten the demise of the death penalty—a punishment he supported early in his career but later found costly and ineffective; prohibit partisan gerrymanders; return the Second Amendment to its original meaning, in his view, as a collective militia right, not an individual right; and reverse the deregulation of money in elections achieved most prominently by the high court’s ruling in Citizens United v. Federal Election Commission.

His final book was: “The Making of a Justice: Reflections on My First 94 Years.”

An Unlikely “Revolutionary”

With his trademark bow-tie, mild manner and unfailingly polite questions on the bench, Stevens was an unlikely “revolutionary” in any area of the law.

Born April 20, 1920, in Chicago, Stevens was the youngest of four boys in a wealthy family headed by his father, Ernest Stevens. In 1927, his father built the Stevens Hotel in Chicago, now the Hilton Chicago, which at the time was one of the largest and finest hotels in the world.

A “very happy childhood,” according to Stevens, was disrupted when in 1934 the hotel went bankrupt and Stevens’ father, grandfather and uncle were indicted for diverting funds from the life insurance company that his grandfather had founded in order to make bond payments on the hotel. His father was convicted of embezzling $1.3 million. But, in that same year, the state Supreme Court overturned the conviction, holding there was “not a scintilla” of evidence of any fraud.

The experience had a profound effect on him, Stevens later said. Some legal scholars trace to that experience the deep sense of fairness and commitment to due process in the criminal justice system that marked his judicial career.

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After graduating from the University of Chicago, Stevens enlisted as an intelligence officer in the U.S. Navy, specializing in cryptology. His enlistment date was Dec. 6, 1941—the day before Pearl Harbor was attacked by the Japanese. Following his discharge in 1945, he enrolled in Northwestern University School of Law and graduated in two years after matriculating through regular and summer sessions.

Shortly before graduating, Stevens and his close friend, Art Seder, were informed by the dean of a possible clerkship with Justice Wiley Rutledge. The dean told the two men to decide who should be recommended. Stevens and Seder flipped a coin—and Stevens won.

Stevens’ clerkship with Rutledge was one of two factors that contributed to Stevens’ subsequent importance in the war on terror cases, Craig Green of Temple University School of Law told The National Law Journal in 2010. Stevens helped Rutledge write the dissent in Ahrens v. Clark in which Rutledge roundly criticized the majority for denying due process to German Americans detained during World War II.

“Rutledge was one of the crucial justices in the last round of really important war power decisions in World War II,” explained Green. “He was very strong on civil liberties. Those issues had a lot more prominence for Stevens than they might have had for another person.”

In Rumsfeld v. Padilla, the 2004 case involving U.S. citizen Jose Padilla, who was detained as an “unlawful combatant,” Stevens set out the foundation for his later opinions in a Rutledge-like dissent chastising his colleagues for dismissing Padilla’s case on jurisdictional grounds.

“At stake in this case is nothing less than the essence of a free society,” Stevens wrote. “Even more important than the method of selecting the people’s rulers and their successors is the character of the constraints imposed on the Executive by the rule of law. Unconstrained Executive detention for the purpose of investigating and preventing subversive activity is the hallmark of the Star Chamber.

After his high court clerkship ended, Stevens went into private practice in Chicago and served briefly on the Republican staff of the House Judiciary Committee in Washington, D.C.

In 1969, he became counsel to a committee assigned to investigate corruption in the Illinois Supreme Court. The result of that work was the prosecution of two state justices for bribery and exposure of corruption throughout the judicial system. His efforts caught the attention of Sen. Charles Percy, R-Illinois, who recommended him for a seat on the U.S. Court of Appeals for the Seventh Circuit. President Richard Nixon nominated Stevens in 1970 and he was confirmed that year.

Stevens served five years on the appellate court where he was known as a moderate conservative judge. In 1975, President Gerald Ford nominated him to fill the Supreme Court seat previously held by Justice William Douglas. He was unanimously confirmed just 19 days later.

From Maverick to Court Leader

During his early years on the high court, Stevens was something of a maverick, often writing lone concurrences or dissents on seemingly tangential issues. But with the departure of Justice Harry Blackmun and liberal lion Justices William Brennan and Thurgood Marshall, Stevens assumed a new role as leader of the court’s left wing and the senior associate justice. He always considered himself a conservative, even when labeled the leader of the court’s “liberal block.”  He often said he never moved left; it was the court that had moved increasingly to the right.

His position as the court’s senior associate justice empowered him to assign majority opinions when he was in the majority and the chief justice was in dissent. When Stevens was in dissent, he also could assign the main dissent to himself or a colleague.

Stevens used the assignment power deftly, forging majorities in a number of significant cases, often with the helpful vote of Justice Anthony Kennedy. One of the areas in which he crafted landmark rulings was fallout from the war on terror.

“On terrorism, he has been not just the leading light on the left, but the master strategist,” said Stephen Vladeck of American University Washington College of Law at Stevens’ retirement in 2010. “For the most part, as Justice Stevens has gone, so has gone the court.”

Besides the Padilla opinion, Stevens wrote the majority opinion in Rasul v. Bush (2004) holding that federal courts have habeas corpus jurisdiction to consider challenges to the legality of the detention of foreign nationals held by the United States at the Guantanamo Bay Naval Base in Cuba. And, he led the majority in Hamdan v. Rumsfeld (2006), holding that military commissions set up by the Bush Administration exceeded the president’s authority and their structure and procedures violated the Uniform Code of Military Justice and the Geneva Conventions.

Guantanamo Bay detention center.

Stevens did not write the majority opinion in perhaps the most important of the terrorism cases—Boumediene v. Bush in 2008—but he did assign the majority opinion to Kennedy. In that case, the Court held that the Military Commissions Act of 2006 operated as an unconstitutional suspension of the writ of habeas corpus and reiterated that Guantanamo Bay detainees had access to federal habeas corpus.

Although Boumediene is considered the more important decision legally of the three by many scholars, Stevens’ opinions in Rasul and Hamdan have been more important politically, according to Vladeck and others. They prompted Congress to act and started a national debate. With all three decisions, the high court moved forward incrementally in its supervision of executive and congressional action in this new type of war.

Enforcing Due Process

In 2000, Stevens wrote the majority opinion in Apprendi v. New Jersey and triggered a small earthquake in criminal sentencing procedures. Apprendi held that due process required that any fact increasing the penalty for a crime above the prescribed statutory maximum must be proved to the jury beyond a reasonable doubt. A judge no longer could impose a higher sentence after finding the requisite facts; it had to be the jury.

Five years later in U.S. v. Booker, Stevens led the majority in dismantling the mandatory character of federal sentencing guidelines. In the process, he put together an unusual coalition, finding key support from Justices Antonin Scalia, who sought to reinvigorate the Sixth Amendment right to a jury trial, and Clarence Thomas.

The animating principle in both decisions was due process, or fairness, in the criminal justice system. It also animated Stevens’ rulings in two other keys areas of criminal law which are major parts of his legacy—the death penalty and right to counsel.

Throughout his career on the court, Stevens strived to bring “more law” to capital punishment. James Liebman of Columbia Law School and Lawrence Marshall of Stanford Law school, both former Stevens clerks, have described the justice’s approach to the death penalty as “less is better.” In Thompson v. Oklahoma (1988) and Atkins v. Virginia (2002), he wrote majority opinions narrowing the eligibility for the penalty by striking down capital punishment for those under age 15 and for mentally retarded persons, respectively. He also is credited with being particularly influential in Roper v. Simmons (2005), written by Justice Anthony Kennedy, eliminating the death penalty for persons under 18.

In the court’s first lethal injection challenge, Baze v. Reese (2008), he wrote a concurring opinion concluding that the death penalty “with such negligible returns to the state” is unconstitutional.

“I have relied on my own experience in reaching the conclusion that the imposition of the death penalty represents ‘the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes,” he wrote.

Justices Harry Blackmun and Lewis Powell Jr., both supportive like Stevens of the death penalty in 1976 when the high court reinstated capital punishment, also ultimately changed their view.

Stevens often held criminal defense lawyers to a higher standard of competency than has the court’s conservative majority in recent years. One of his last victories in this area has had major ramifications. In Padilla v. Kentucky (2010), he led the majority in holding that defense counsel has an affirmative duty to inform a client that a plea may carry a risk of deportation.

Stevens in Dissent

Two of Stevens’ most important dissents came near the end of his tenure in two of the Roberts court’s most controversial cases.

In District of Columbia v. Heller, a 5-4 majority, with Stevens dissenting, held that the Second Amendment guarantees an individual right to possess a firearm—unconnected with service in a militia– and to use that firearm for traditionally lawful purposes.

In his lengthy dissent, Stevens fought with the majority’s author, Scalia, on the original meaning of the amendment’s text, its history and the importance of a 70-year-old precedent holding that the right guaranteed was a collective one, not an individual one.

U.S. Supreme Court Justice Antonin Scalia. (Photo: Diego M. Radzinschi / ALM)

So certain that his view was correct, Stevens later told this reporter, he had circulated his draft dissent before the draft majority opinion went to the other justices.

“It was unusual,” he said. “We thought if anybody made a fair and thorough analysis of the history, that we would win. That’s why we put it out there.”

But he didn’t win. When asked what a justice should do if there are good arguments on both sides, he said, “History is important but as long as there are reasonable arguments on both sides, you look at other factors involved in the case. In this particular case, you’re really asking the question who should make the policy decisions of what gun control rules we should have. It seems to me this is the quintessential example of the policy question the elected representatives of the people should decide. That to me is a terribly important tie-breaker. And then you have stare decisis—when a rule is that well-settled and hasn’t caused any unfair results, normally you let the rule stand.”

The second major dissent came just six months before he retired. In Citizens United v. Federal Election Commission (2010), a 5-4 court struck down federal limits on independent campaign expenditures by corporations because they violated the First Amendment speech rights of corporations.

Stevens wrote that corporations are not people and money, which finances speech, is not “speech.” He later explained his views to this writer, saying, “An election is a form of debate. Where you have a debate, you make rules that equalize the two sides. When we have a debate in our court, each side gets 30 minutes and because one of them has a $100 million, they don’t get any extra time.”

At the end of his lengthy dissent, he wrote: “At bottom, the Court’s opinion is thus a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self-government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt. It is a strange time to repudiate that common sense. While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.”

On the day the decision was issued, Stevens read a summary of his dissent from the bench and stumbled in its delivery. He later revealed that, despite being cleared of any medical problem by his doctor, he decided that day to retire.

Stevens’ wife of 35 years, Maryan, died on Aug. 7, 2015. He is survived by his children, Elizabeth Jane Sesemann (Craig) and Susan Roberta Mullen (Kevin), nine grandchildren: Kathryn, Christine, Edward, Susan, Lauren, John, Madison, Hannah and Haley, and 13 great-grandchildren. His first wife, Elizabeth Jane, his second wife, Maryan Mulholland, his son, John Joseph, and his daughter, Kathryn, preceded him in death.

Funeral plans will be released when available, according to the Supreme Court.

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One of Justice Stevens’s greatest contributions was his opinion in INS v. Cardoza-Fonseca, 480 U.S. 421 (1987). That case established the generous “well-founded fear” standard for asylum eligibility under the Refugee Act of 1980. Justice Stevens rejected the Government’s position that a higher “clear probability,” in other words “more likely than not,” standard applied. 

In parsing the history and intent behind the Act’s “refugee” definition, which was taken from the 1951 United Nations Convention on the Status of Refugees, Justice Stevens cited extensively from the UNHCR’s U.N. Handbook on Procedures and Criteria for Determining Refugee Status. His opinion also famously stated “There is simply no room in the United Nations’ definition for concluding that because an applicant has only a 10% chance of being shot, tortured, or otherwise persecuted that he or she has no ‘well-founded fear’ of the event happening.” 480 U.S. 439.

Justice Stevens closed by stating:

Our analysis of the plain language of the Act, its symmetry with the United Nations Protocol, and its legislative history, lead inexorably to the conclusion that to show a “well-founded fear of persecution,” an alien need not prove that it is more likely than not that he or she will be persecuted in his or her home country. We find these ordinary canons of statutory construction compelling, even without regard to the longstanding principle of construing any lingering ambiguities in deportation statutes in favor of the alien. See INS v. Errico, 385 U.S. 214, 225 (1966); Costello v. INS, 376 U.S. 120, 128 (1964); Fong Haw Tan v. Phelan, 333 U.S. 6, 10 (1948).

Deportation is always a harsh measure; it is all the more replete with danger when the alien makes a claim that he or she will be subject to death or persecution if forced to return to his or her home country. In enacting the Refugee Act of 1980 Congress sought to “give the United States sufficient flexibility to respond to situations involving political or religious dissidents and detainees throughout the world.” H. R. Rep., at 9. Our holding today increases that flexibility by rejecting the Government’s contention that the Attorney General may not even consider granting asylum to one who [480 U.S. 421, 450] fails to satisfy the strict 243(h) standard. Whether or not a “refugee” is eventually granted asylum is a matter which Congress has left for the Attorney General to decide. But it is clear that Congress did not intend to restrict eligibility for that relief to those who could prove that it is more likely than not that they will be persecuted if deported.

480 U.S. 449-50.

I have a particular recollection of the difference made by Justice Stevens’s opinion in Cardoza-Fonseca because I worked on that case. At that time, I was the Deputy General Counsel of the “Legacy INS.” I assisted the Solicitor General’s Office in developing the INS’s, ultimately losing, position that the Act required a showing that persecution was “more likely than not.”

I was present in Court on October 7, 1986 for the oral argument.  Ms. Cardoza-Fonseca was represented by a brilliant young lawyer from San Francisco named Dana Marks Keener, who won the day for her client. It was Dana’s first, and as far as I know only, argument before the Court.

By contrast, her opposing counsel that day, Deputy Solicitor General Larry Wallace, had 157 oral arguments before the Court. According to Wikipedia, Wallace “holds the record for most cases argued before the Supreme Court by any attorney, public or private, in the twentieth century.”

Shortly thereafter, Dana (now known as Dana Leigh Marks) was appointed a U.S. Immigration Judge in San Francisco. We later became great friends and colleagues.

Dana went on to become a President of the National Association of Immigration Judges (“NAIJ”). Dana is one of America’s leading proponents of judicial independence for U.S. Immigration Judges and the establishment of an independent Article I U.S. Immigration Court. She has made countless appearances on television and radio and is often quoted in major media. I often refer to Dana as one of the “Founding Mothers” of U.S. asylum law.

When I first read Justice Stevens’s opinion, I realized he was right, and we had been wrong. Thereafter, I made it a point to be faithful to the “10% test” and the generous interpretation of “well-founded fear” established by Cardoza-Fonseca and later incorporated by the BIA in Matter of Mogharrabi, 19 I&N Dec. 437 (BIA 1987).

When I was appointed Chairman of the BIA by then Attorney General Janet Reno in 1995, I was taken aback to discover that some of my colleagues appeared to be giving only “lip service” to Cardoza-Fonseca and Mogharrabi, while actually applying what seemed to me the discredited “more likely than not” standard to asylum cases. That lead to lots of dissenting opinions and my eventually being “exiled” to the Arlington Immigration Court by Attorney General John Ashcroft. During my 13 years on the bench in Arlington, I always tried my best to remain faithful to Cardoza-Fonseca and Mogharrabi and to “bring them to life” in my courtroom and in my teaching, both in and out of court.

As a result of Dana’s arguments and Justice Stevens’s opinion in Cardozo-Fonseca, the situation for U.S. asylum seekers improved dramatically over the next three decades. On the eve of Cardoza-Fonseca, only about 10% of asylum applicants were successful in Immigration Court. By 2012, over 50% were succeeding in their claims. Thus, it seemed that the Justice Stevens’s vision and the “generous promise of Cardoza-Fonseca” were on the verge of finally being fulfilled.

Alas, it was not to happen. Starting with the Obama Administration’s misguided (and ineffective) “tough guy” response to a largely exaggerated “border surge” of 2014, and continuing with the Trump Administration’s all out White Nationalist assault on refugee and asylum law and Due Process generally, the DOJ has used various devices to force down the asylum grant rate everywhere, including Immigration Court. Now, only about one-third of applications are being granted, notwithstanding that conditions in most of the “sending countries” for refugees and asylum seekers have actually gotten measurably worse since 2012.

As shown by their scofflaw actions this week, the Trump Administration intends to effectively repeal the Refugee Act of 1980 and withdraw from the Convention by bogus regulations and administrative fiat. I believe that Justice Stevens would be among those of us finding that situation deplorable.

However, like Justice Stevens, there are many of us out here still carrying on the tradition of human kindness, generosity, common sense, and the “upward arc of the law.” Through the efforts of the “New Due Process Army” and others who will follow in their footsteps, I believe that justice and human dignity will eventually triumph and that Justice Stevens’s wise and inspiring words in Cardoza-Fonseca will once again be given life and become the hallmark of U.S. asylum adjudication and the recognition of human rights in the United States. 

Thanks again, Justice Stevens, for a life well-lived and your outstanding contributions to American law and to humanity. 

PWS

07-18-19