Former U.S. Supreme Court justice John Paul Stevens (Photo: Diego M. Radzinschi / NLJ)
Retired U.S. Supreme Court Justice John Paul Stevens arrived for a speaking engagement in Miami with a ruddy face and ready smile. He had been swimming in the ocean that morning, he said. At age 93, Stevens is still going strong — not only his physical condition, but in his opinions as well.
Asked at one point during his appearance whether it would take a constitutional amendment to counteract the effects of the 2010 Citizens United decision on campaign finance, Stevens shot back, “Either a constitutional amendment or one more vote.” Stevens wrote a forceful dissent in the 5-4 ruling.
Stevens spoke on Feb. 7 during the annual meeting of the American Bar Association Forum on Communications Law, the premier gathering of news media lawyers from around the country. The theme was the 50th anniversary of New York Times v. Sullivan, the landmark decision that freed the press from libel liability for almost anything they write about public officials.
Stevens did not join the court until 1975, but during prepared remarks and a public conversation that this reporter led, Stevens reassured reporters that Sullivan was “a very sensible rule” that has turned libel into a “settled area of the law.” Stevens also recounted his own memories of Justice William Brennan, the liberal lion who wrote the Sullivan opinion.
In his early days as a justice, Stevens recalled, Brennan persuaded him to attend the exclusive Gridiron Club dinner put on by Washington journalists. Brennan insisted on loaning Stevens his suit with tails for the occasion.
The problem, Stevens said, was that “Brennan was a good deal heavier than I was.” As a result, Stevens worried all evening that the suit “would not protect my dignity.” But it all turned out well. Stevens was seated next to the famed dancer and actress Ginger Rogers. “It was one of the best evenings I ever had, and I owe that to Bill Brennan.”
As on other occasions since retiring in 2010, Stevens was critical of some of the decisions the court has handed down since he left. Both Snyder v. Phelps and United States v. Alvarez, he said, were too protective of false speech. The Snyder case went in favor of virulent protesters at military funerals, and Alvarez struck down a federal law that made it a crime to falsely claim to have won a military Medal of Honor.
The Alvarez ruling, Stevens said, “sends a terrible message to the youth of our nation and to the general public as well” by announcing a constitutional right to lie.
Neither Snyder nor Alvarez were 5-4 decisions, so the fact that Stevens would have voted differently than his successor Elena Kagan would not have made a difference in the outcome.
Still, Stevens’ remarks underscored what a difference a single justice can make, even on a nine-member court. He recounted how, in Harte-Hanks Communications v. Connaughton, a libel decision he authored in 1989, he was first assigned to write a propress majority opinion. When he read the record, however, he changed his mind, deciding it was a rare instance when the press should be held liable for defaming a political candidate. The rest of the court followed Stevens’ lead.
The behind-the-scenes maneuvering in the court’s long line of libel cases is the focus of a powerful new book that was discussed at the conference. Written by court scholar Steve Wermiel and Lee Levine, partner at Levine Sullivan Koch & Schulz, “The Progeny: Justice William J. Brennan’s Fight to Preserve the Legacy of New York Times v. Sullivan” makes it clear that court opinions can be the product of months — and sometimes years — of negotiations and rewrites.
Stevens said he did not recall Brennan’s campaign to keep Sullivan alive, though he knew that other justices — primarily Byron White — felt strongly that the decision went too far in immunizing the press.
Stevens told the audience that his hearing and his memory were not what they used to be. He was at his best when discussing cases he had re-read in preparation for his talk. When he gave his prepared remarks, Stevens experienced every public speaker’s nightmare: Two out of 15 pages of his text were missing. Both times, after a minute or so, he summarized what those pages contained.
And his sense of humor was as sharp as ever. Later during our discussion, I lost my place looking for a question I wanted to ask him. Stevens leaned over and suggested that maybe my question had ended up in the same place where his missing pages had gone. The audience roared. The justice had the last word.
Contact Tony Mauro at firstname.lastname@example.org.