Almost every week the U.S. Supreme Court is in session, the list of routine orders it issues contains a reminder of Justice John Paul Stevens’ strongly independent approach to his work on the Court.
Toward the bottom of the list, the Court often scolds a pro se litigant who has “repeatedly abused this Court’s process” by filing a flurry of frivolous petitions, and then will bar the petitioner from future filings unless a fee is paid. The next line always is, “Justice Stevens dissents.”
Stevens refuses to join such prohibitions, he said in a 1992 dissent, because of “the shadow it casts on the great tradition of open access that characterized the Court’s history.”
In ways small and large, Stevens, who announced his retirement on April 9, will leave as much of a legacy inside the Court as he will in his decisions.
“He had tremendous impact on his colleagues,” said former law clerk Pamela Harris, now director of the Supreme Court Institute at Georgetown University Law Center. Fair treatment of litigants was always a high priority for Stevens, Harris said.
Characteristically, Stevens’ view on allowing even the most annoying frequent filers access to the Court stemmed not from an abstract reverence for openness, but from his own long-ago experiences. Stevens first came to prominence in 1969 as chief counsel to a commission investigating allegations of corruption on the Illinois Supreme Court. The charges were first made by Sherman Skolnick, a local gadfly who, like the scolded litigants at the U.S. Supreme Court, frequently filed lawsuits pro se.
“The unexpected merit that we found in the allegations made by Sherman Skolnick has remained a powerful reminder that categorical prohibitions against repetitive filings can create a real risk of injustice,” Stevens wrote in 2001.
Stevens’ Illinois experience also informed his unique use of his law clerks. For much of his tenure he was the only justice outside the “cert pool,” which meant this his clerks would assist only him in deciding which new petitions warranted review or certiorari, and which to reject. Clerks for all the other justices would write memos about incoming cases for all eight justices in the pool.
One problem Stevens saw in his investigation of the Illinois Supreme Court was that justices other than the one writing the opinion were “less diligent” in preparing for upcoming cases. “It is even less appropriate to delegate the task of preparing a preargument bench memo for the entire court to a member of the staff — no matter how gifted and impartial that staff person might be,” Stevens wrote in the foreword to a 2001 book.
Other justices are beginning to adopt Stevens’ preference for screening cases in their own chambers. Justice Samuel Alito Jr. left the pooling arrangement in 2008 after participating in it for two years, and Justice Sonia Sotomayor has hinted she might follow the same path.
Unique among his colleagues, Stevens also wrote many if not most of the first drafts of his opinions instead of delegating that task to his clerks. “He told me, ‘I’m the one hired to do the job,’ ” said Todd Peppers, author of a 2005 book on Supreme Court law clerks.
Stevens was also a model for seeking diversity among his law clerks. Stevens often hired as many women as men, and had several minority clerks over the years.
In 1998, he hired Adam Samaha, a clerk with dystonia, a serious neurological disorder. Stevens was asked about employing possibly the first clerk with a significant disability. In a letter to this reporter, Stevens wrote, “I will simply tell you that I applied the same standard in hiring my three current clerks that I have always employed and that their work so far this term has confirmed my judgment that they were the three best qualified candidates available when I hired them.”
Tony Mauro can be contacted at email@example.com.