Earlier this month, New York City sent a letter to Scott Harris, the clerk of the Supreme Court, to inform the justices that a challenge to the city’s ban on transporting guns outside the city limits is moot – that is, no longer a live controversy. The Supreme Court did not accept the letter, perhaps because the challengers in the case objected. The challengers argued (among other things) that the letter was “premature” because the developments that the city cited as rendering the case moot had not yet gone into effect. With changes to both state and city laws now in place, the city returned to the court today, urging the justices to remove the case from their docket for the upcoming term.
Justice John Paul Stevens was brought into the Great Hall of the Supreme Court building on Monday to lie in repose, with his successor, Justice Elena Kagan, saying that his memory “will be a blessing in this court, which he served so well for so long.”
“It will be a blessing in the lives of all the people whom he personally touched,” Kagan added. “And it will be a blessing in the wider world, which has been made far better for his efforts.”
Kagan was the only member of the court to speak during the brief ceremony, but she was joined by Chief Justice John Roberts, Justices Ruth Bader Ginsburg, Samuel Alito and Sonia Sotomayor, and retired Justice Anthony Kennedy.
Justice Elena Kagan, center left, speaks at a private ceremony in the Great Hall of the Supreme Court in Washington, Monday, July 22, 2019, where the late Supreme Court Justice John Paul Stevens lies in repose. Also pictured at right are retired Justice Anthony Kennedy, Ashley Kavanaugh, the wife of Justice Brett Kavanaugh, Justice Sonia Sotomayor, Justice Samuel Alito, Justice Ruth Bader Ginsburg and Chief Justice John Roberts. (AP Photo/Andrew Harnik, pool)
Gregory G. Garre is a partner in the Washington, D.C. office of Latham & Watkins and Chair of the firm’s Supreme Court & Appellate Practice. He served as the 44th Solicitor General of the United States from 2008 to 2009.
A somber, important and now familiar ritual is playing out, again. A casket solemnly carried up the marble steps of the Supreme Court. Members of the court — justices, clerks, court staff — public officials, and ordinary citizens lining up to pay their final respects while the casket lies in the great hall of the court. Glimpses of the grief-stricken faces of justices, a reminder that the court really is more of a family than we can appreciate.
We have seen this tradition carried out too often over the past several years. But it is also an opportunity to see the Supreme Court as an institution come together to honor one of its own, with the justices leaving aside their personal views (and disagreements) on this decision or that.
This time, we honor Justice John Paul Stevens. Much has been (and will be) written about the mark he left on the law. Reflecting on Justice Stevens, three things stand out to me.
As the late Justice John Paul Stevens lies in repose in the Supreme Court’s Great Hall today, court-watchers continue to reflect on Stevens’ life in the law. At Stanford Law School’s Legal Aggregate blog, John Donohue suggests that Stevens “came to be defined in part by his sharply contrasting antagonist Antonin Scalia.” In an op-ed for The New York Times, Linda Greenhouse maintains that Stevens’ “approach to abortion cases, and the way that approach changed over the decades, exemplifies the kind of judge he was: attentive to facts, open to argument, impatient with intellectual shortcuts, persuaded that civility offered a more reliable route to success than invective.” Daniel Cotter discusses Stevens’ legacy in a WTAX podcast.
The battle over the Trump administration’s efforts to build a wall along the U.S. border with Mexico continued to unfold today. Last week the federal government asked the Supreme Court to put on hold a district court’s order that prohibited the government from using $2.5 billion in Pentagon funds for construction of the wall. This afternoon the Sierra Club and the Southern Borders Communities Coalition, which filed the challenge to the use of the funds for construction of the wall, pushed back, urging the justices to deny the government’s request.
In a 50-page brief filed shortly before 4 p.m. EDT, lawyers for the challengers told the justices that giving the government the relief it seeks would have the opposite effect from the general purpose of a stay, which is to maintain the status quo while the court considers the case. If a stay is granted and wall construction begins, the challengers warned ominously, “there will be no turning back.”
Paul Clement is a partner in the Washington, D.C., office of Kirkland & Ellis LLP. Clement served as the 43rd Solicitor General of the United States from June 2005 until June 2008.
In looking back at Justice John Paul Stevens’ remarkable life and tenure on the Supreme Court, there are many ways to try to capture his enduring contribution to the court and its jurisprudence. Perhaps the most obvious metric is to look to his many influential opinions for the court, of which there is no shortage. Every lawyer has a favorite, but there is no denying the importance of his opinions for the court in cases like Chevron U.S.A. v. Natural Resources Defense Council, Apprendi v. New Jersey and Clinton v. Jones.
As Justice John Paul Stevens prepared to read his farewell letter in 2010 he noted that when he joined the court in 1975 such a letter could well have been addressed “Dear Brethren,” but with two women on the court — likely to be joined by a third — he began with “Dear Colleagues.” (Art Lien)
Kenneth A. Manaster is Professor of Law, Emeritus at Santa Clara University and senior counsel at Pillsbury Winthrop Shaw Pittman LLP. He was associate counsel on the 1969 Special Commission of the Illinois Supreme Court with John Paul Stevens, who served as chief counsel. Manaster is the author of “Illinois Justice: The Scandal of 1969 and the Rise of John Paul Stevens” (University of Chicago Press, 2001) and an executive producer of “Unexpected Justice: The Rise of John Paul Stevens” (2015).
In the morning of July 16, 1969, the Apollo 11 rocket was launched to the moon. Millions of Americans watched the launch on television. Chicago attorney John Paul Stevens did not. The launch was broadcast there about 8:30 a.m. John’s inattention to the launch was not because he was asleep or uninterested. He had another commitment to meet. He had been up since 4 a.m., hard at work preparing to continue his cross-examination of a critical and daunting witness — the chief justice of the Illinois Supreme Court — in the investigative proceeding that turned out to be the catalyst for John’s elevation to the federal bench one year later.
Reactions to the death this week of retired Justice John Paul Stevens continue. For the ABA Journal, Mark Walsh reports that “[i]n the wake of Stevens’ death, admirers spoke of him as the last of a breed of nominees chosen based more on his legal acumen than on political calculations of how he might rule or whether he would please particular camps.” At The Atlantic, Garrett Epps writes of the influence on a young Stevens of “the arrest of his father … on charges that he and two other family members had embezzled funds to cover losses at their downtown-Chicago hotel”; Epps finds it “impossible to read [Stevens’] opinions without concluding that he had also learned some judicial empathy for those trapped in the system’s coils.” Andrew Cohen writes at the Brennan Center for Justice that, to Stevens’ “everlasting credit, his ability to recognize his errors and seek to rectify them became one of his many strengths.”
Justice Elena Kagan was at Georgetown University Law Center on Thursday afternoon for a conversation with the dean of the law center, William Treanor. With the recent passing of Justice John Paul Stevens, whose seat Kagan filled after Stevens retired, Kagan and Treanor began by discussing Stevens’ legal legacy and remarkable personal character.
Ian Heath Gershengorn is Chair of Jenner & Block’s Appellate and Supreme Court practice, and he served as Principal Deputy Solicitor General and as Acting Solicitor General in the Obama Administration; he was a law clerk to Justice John Paul Stevens in 1994-1995.
Justice Stevens was a brilliant justice and a wonderful boss. In thinking about how to convey who the justice was, I think first of his dissents, not for what they show of his jurisprudence — I leave that to others — but instead for what they show about the justice as a person. In those dissents, large and small, the justice revealed a bit of himself and what made him so special.
Let’s start small, with Supreme Court Rule 39.8. That rule allows the court to deny “in forma pauperis,” or IFP, status to frequent and abusive filers, forcing them to pay a filing fee for their petitions to be heard. The order lists from the court routinely contain boilerplate language directing the clerk not to accept the filings of a petitioner who has flooded the court with filing after filing. The court’s practice is reasonable and perfectly understandable. But Justice Stevens routinely dissented from those orders. He explained his reasoning in several dissents in the early 1990s, and I remember his making the same point with us in chambers. The burden on the Supreme Court, he thought, was trivial — the challenged petitions were denied routinely on the substance — but even a heavier burden would be far outweighed by the “shadow it casts on the great tradition of open access that [has] characterized the Court’s history.” For Justice Stevens, it was essential to make clear to “both the rich and the poor” that the court’s doors were always open.
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