John Paul Stevens dissented until the end

(Editorial Observer): Most Supreme Court justices keep a low profile after retiring from the bench. The court is the most opaque institution in American government, and its members go to great lengths to keep it that way. They avoid weighing in publicly on live legal questions, and they rarely, if ever, criticize the work of the court’s current members.

That wasn’t John Paul Stevens’ style.

Stevens, who died on Tuesday at 99, stepped down from the bench in 2010 — but even after serving for more than three decades, he never seemed entirely finished with the job.

In the nine years of his retirement, he remained engaged in the nation’s civic life, as well as in its most fraught legal debates. He wrote essays, opinion pieces and books for the general public, including one that called for several amendments to the Constitution. He toured the country giving speeches. And he spoke out against rulings by the court — those he had participated in and some he hadn’t.

It was a refreshing approach that helped to humanize and demystify the court, whose integrity Stevens cherished as much as anyone. He made no secret of his feelings about behavior that reflected poorly on the institution.

Last fall, after Brett Kavanaugh, President Donald Trump’s second Supreme Court nominee, laced into Democrats and liberals in a partisan outburst during his confirmation hearings, Stevens took the unusual if not unprecedented step of calling on the Senate to reject his nomination. Kavanaugh “has demonstrated a potential bias involving enough potential litigants before the court that he would not be able to perform his full responsibilities,” Stevens said. (Kavanaugh was confirmed, 50-48.)

The full and open airing of dissent, Stevens believed, was essential not only to his role as a justice but also to the healthy functioning of American law. While temperamentally gentle and unfailingly gracious, he didn’t hesitate to make his differences with other justices known.

He was particularly upset with the court’s decision in Bush v. Gore, which effectively decided the 2000 presidential election by a 5-4 vote, with the more conservative justices on one side and the liberals, including Stevens, on the other — a result that “can only lend credence to the most cynical appraisal of the work of judges throughout the land,” he wrote in dissent.

He also tangled frequently with Justice Antonin Scalia, one of the court’s most bellicose conservatives. In a landmark 2008 case that established an individual right to bear arms under the Second Amendment, Scalia, writing in another 5-4 decision, relied heavily on his own reading of American legal and constitutional history. Stevens, in dissent, came right back with his own lengthy and competing narrative.

“The Court would have us believe that over 200 years ago, the Framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons,” Stevens wrote. “Absent compelling evidence that is nowhere to be found in the Court’s opinion, I could not possibly conclude that the Framers made such a choice.”

Unlike Scalia, whose legal views only hardened with age, Stevens continued to question himself and his assumptions, and to listen closely to the dissents of others.

In 2008, Stevens wrote the lead opinion for the court in a case upholding the constitutionality of Indiana’s new voter-ID law. The law had been sold as a way of preventing one type of voter fraud, but as Justice David Souter pointed out in dissent, there was no evidence that such fraud actually occurred, and in the meantime the law made it much harder for many voters to cast a ballot. In 2013, Stevens told The Wall Street Journal that while he still believed his 2008 opinion was correct given the information available to him at the time, “as a matter of actual history,” Souter was “dead right.”

This humility was one of many ways in which Stevens seemed from another era — one of brightly colored bow ties, decency and nonpartisan comity. An era when a justice’s vote couldn’t be predicted based on the party of the president who nominated him.

When Stevens joined the court in 1975, it was an all-male, nearly all-white institution. The justice he replaced, William O. Douglas, had been picked by President Franklin Roosevelt. Stevens’ confirmation by the Senate came less than three weeks after President Gerald Ford nominated him. The vote was unanimous, a scenario as unimaginable today as it was unremarkable then.

He was a Republican jurist nominated by a Republican president, but by the time he stepped down, he had become the leader of the court’s liberal wing. Over the years he wrote major opinions on the death penalty, the scope of the president’s power to detain enemy combatants and the role of government agencies in making regulations. All along he insisted that it wasn’t he who had moved left but the court that had moved right. “I don’t think of myself as a liberal at all,” he told The Times in 2007. “I’m pretty darn conservative.”

After nearly 35 years on the court — the third-longest tenure of any justice — Stevens stepped down, but it was clear that he yearned to stay in the middle of the action. In his book “Six Amendments,” he called for major constitutional reforms, including the abolishment of the Second Amendment and the death penalty, and amendments that placed greater controls on partisan gerrymandering and campaign finance.

The New York Times’ editorial board wasn’t spared Stevens’ piercing gaze. In 2015, he wrote a letter to the editor criticizing an editorial on the court’s role in policing prosecutorial misconduct. The editorial described an abominable 2011 decision in which the court overturned a jury’s $14 million reward to a Louisiana man who had been wrongly convicted of murder and spent 14 years on death row because a prosecutor hid evidence that proved his innocence.

The editorial called on the court to take a more aggressive role in punishing prosecutorial misconduct like the kind in the Louisiana case. Stevens would have gone further. He agreed that the 2011 ruling had been a “manifest injustice.” Still, he said, the editorial failed to identify the most effective way to hold prosecutors responsible.

“The rule of respondeat superior — which requires employers to pay damages for torts committed by their employees in the ordinary course of business — should apply to state law enforcement agencies,” Stevens wrote. It would be a “wise” solution to a persistent and widespread problem, one “well supported by applicable law and scholarly writing.” It was also, he pointed out, supported by his own writing — a dissent in a 30-year-old Supreme Court case involving a killing by a police officer.

No other justice joined what Stevens called his “rather old-fashioned and simple approach” in his dissent — a point that surely didn’t trouble him.

This article originally appeared in The New York Times.