Dissent and Majority: The First Nine Terms of Justice John Paul Stevens

In his memoir, The Making of a Justice, John Paul Stevens noted that around the time of his appointment to the United States Court of Appeals for the Seventh Circuit, it had become custom at all levels of the federal judiciary to limit “the publication of written dissents to exceptional cases, a practice believed to enhance the court’s reputation for impartiality following the law.” Frequent dissents, it was thought, undermined public confidence in the courts. Stevens did not agree. “I have never agreed with that view. I then thought, and still think, the public is entitled to know how every judge votes in an argued case.” From his appointment to the Court of Appeals to his ascension to the Supreme Court, Stevens always either joined a fellow justice’s opinion or wrote his “own explanation” for his vote. [1]

John Paul Stevens pictured in his robes in 1976

Official portraits of the 1976 U.S. Supreme Court: Justice John Paul Stevens, III, Robert Oakes, photographer, January 27, 1976, Prints and Photographs Division, Library of Congress.

Through this example and others, in his jurisprudence Stevens developed a reputation as “a very smart, nonideological, slightly quirky loner, who if a case was decided by a vote of 8 to 1, was as likely as not to be the solitary dissenter, caring neither to lead nor to follow,” as Linda Greenhouse wrote in her 2019 obituary of the late justice.[2]

Whether they subscribe to this view or not, legal experts, journalists, and others will discover in the now open John Paul Stevens Papers  the opportunity to explore the justice’s legacy and that of the larger Supreme Court. Currently, the collection spans the first nine terms, October Term 1975 through October Term 1983, of Stevens’s long tenure (1975-2010). The remainder of the collection is expected to come to the Library in the future.

Researchers should note that the opinion files in the collection are organized as arranged by Justice Stevens’s staff at the Court and are somewhat atypical when compared to the papers of other twentieth-century Supreme Court justices held by the Manuscript Division, including several of Stevens’s colleagues: Thurgood Marshall, Harry A. Blackmun, William J. Brennan, and Byron White. Arranged according to court term, the John Paul Stevens Papers are subsequently divided between two groups: court circulations and Stevens’s assignments.  Court circulations consist mostly of those cases in which other justices wrote the majority opinion. When Stevens authored his own opinion, concurrence, or dissent, the files are located within Stevens’s assignments.

Despite being limited, for now, to his first nine terms, the John Paul Stevens Papers offer researchers insight into numerous important cases. For individuals interested in Stevens’s evolving opinion regarding capital punishment, case files on Gregg v. Georgia serve as a lens through which to explore the justice’s early thinking on the matter. The five cases argued and filed under the capital case Gregg v. Georgia include Jurek v. Texas, one of the few verdicts upon which Stevens expressed reservations. “My law clerk George Rutherglen urged me to change my vote in that case and I have lived to regret my failure to do so,” Stevens wrote in his memoir.[3] Docket sheets, vote tallies, conference notes, and annotated drafts all provide insight into Steven’s jurisprudence on the issue.

Parties interested in issues of affirmative action will find files relating to the Regents of the University of California v. Bakke, the 1978 case that limited but also upheld affirmative action policies in college admissions. For example, in a letter to Stevens concerning his opinion on the case, Chief Justice Warren Burger suggested several edits and additions to Stevens’s concurrence; lobbying Stevens to include the following passage regarding Lewis Powell’s opinion, “Mr. Justice Powell’s opinion agrees that Bakke was excluded because of race in violation of the law, and, that being the only issue presented by the petitioner, that should end the matter. Anything said beyond that is clearly dictum.” To this and several other suggestions, Stevens simply scribbled “No” in the margin.[4] Numerous other documents, such as his notes from conference, demonstrate the sort of discussions that unfolded between justices.

During his first terms on the Court, Stevens more or less aligned with the conservative wing on the issue of affirmative action, as evidenced first by his concurrence in Bakke. In 1980, he cast a dissenting opinion in Fullilove v. Klutznick, in which the majority opinion upheld set-aside programs for minority contractors. Stevens argued that the policy would become little more than a sloppy form of patronage: “a permanent source of justification for grants and special privileges.”[5]

According to Greenhouse, Stevens later distanced himself somewhat from such positions, as in Richmond v. J. A. Croson and Company, by voting to uphold the invalidation of another set-aside program but dismissing, in his concurrence, the argument that racial classifications were only acceptable as an effort to remedy past wrongs. Instead, he suggested it could be permissible if a policy took race into account as a tool for building a more promising tomorrow. Though the 1989 case is not currently available in his papers, the two earlier examples provide researchers with vantage points from which to view Stevens’s changing opinion on the issue.

John Paul Stevens, handwritten draft of Chevron opinion, 1984, Box 285, John Paul Stevens Papers, Manuscript Division, Library of Congress.

Students of administrative law will discover Stevens’s handwritten drafts of his opinion in Chevron v. National Resources Defense Council, Inc. (1984), arguably his most cited case during his time on the Court. The drafts illustrate Stevens’s approach to and thoughts on the subject. “The Chief has assigned me the dissent in this case, but I have accepted the assignment only tentatively in the hope that your opinion will bring us all together,” William J. Brennan wrote after conference.[6]

Further correspondence between the two justices reveal how Stevens shaped the opinion to create a larger consensus. In his majority opinion, Stevens managed to get both Justice Burger and Justice Brennan to join, no small feat considering the two jurists often had conflicting ideologies.

Other major cases upon which Stevens wrote majority opinions, concurrences, or dissents also appear in the collection. National League of Cities v. Usery (1976, dissent, commerce clause), Craig v. Boren (1976, concurrence, sex discrimination), and NAACP v. Claiborne Hardware Company (1982, majority opinion, civil rights) serve as just a few examples.

In his final years after leaving the Court, Stevens emerged as a public intellectual, writing articles and books on the Court and the law. The John Paul Stevens Papers offer a window into the justice’s early years and part of the foundation upon which his philosophy regarding the law was built.

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[1] John Paul Stevens, The Making of a Justice: Reflections on My First 94 Years (New York: Little Brown & Company, 2019), 104-105.

[2] Linda Greenhouse, “Supreme Court Justice John Paul Stevens, Who Led Liberal Wing, Dies at 99,” New York Times, July 16, 2019.

[3] Stevens, The Making of a Justice, 143.

[4] Warren E. Burger to John Paul Stevens, Memorandum re: 76-811 Regents of the University of California v. Bakke, annotated by Stevens, May 23, 1978, Box 80, John Paul Stevens Papers, Manuscript Division, Library of Congress.

[5] Greenhouse, New York Times, July 16, 2019.

[6] William J. Brennan to John Paul Stevens, Memorandum re: 82-1005 Chevron U.S.A., Inc. v. Natural Resources Defense Council, March 7, 1984, Box 285, John Paul Stevens Papers, Manuscript Division, Library of Congress.