04.20.10

Statement On The Legacy Of Justice John Paul Stevens

Justice John Paul Stevens’ retirement from the Supreme Court will begin to draw to a close an extraordinary judicial career spanning four decades, including 35 years on the Nation’s highest court.  Justice Stevens and I both came to Washington in the wake of the Watergate scandal.  President Ford was impressed by Justice Stevens’ anticorruption record, including his prosecution of two Illinois Supreme Court Justices who were charged with accepting bribes.  His confirmation to the Supreme Court was the first of a dozen Supreme Court nominations I have considered in my years in the Senate.  As a young, freshman Senator, it was a privilege to support his confirmation in 1975.

Justice Stevens is the only sitting Justice with active military service during wartime, and he is the last Justice from the “Greatest Generation.”   He has never turned away when the Nation sought his service.  His work as a Navy intelligence officer during World War II earned him a bronze star.   

Justice Stevens’ unique and enduring perspective is irreplaceable; his stalwart adherence to the rule of law is unparalleled. The Federal judiciary, and indeed the entire Nation, will miss his principled jurisprudence. Today, as he marks another milestone with the celebration of his 90th birthday, and as we continue to honor his legacy, I want to mention just a few of his most notable opinions.

Over the past 35 years, I have submitted briefs to the Supreme Court in only a few cases.  The most recent case was very important to me.  It involved a Vermont musician named Diana Levine.   Ms. Levine was forced to endure the amputation of her arm after she was injected with a drug to treat nausea.  The drug maker failed to include critical information on its warning label that could have saved Ms. Levine’s arm, and she ultimately sued the drug maker for this failure.  A Vermont jury awarded Ms. Levine damages for the injuries that forever altered her life and career.  Justice Stevens wrote the Court’s opinion in that important case.  He concluded that Food and Drug Administration approval of a drug for sale does not prevent that corporation from being held accountable under State consumer protection laws.  In Ms. Levine’s case, a Vermont jury heard all the facts and determined that the corporation had improperly labeled its product and failed to warn about the risks of injecting the drug.  Justice Stevens’ opinion in the Levine case ensured that millions of Americans who rely on pharmaceuticals will be protected by their own state laws, and will not be denied access to justice if they are injured.  Although most Americans never expect that they will need to go to court, the right to do so is enshrined in our Constitution.  Justice Stevens’ wrote a similarly compelling decision for the Court in a case called Tennessee v. Lane.

Justice Stevens has written important opinions in cases in which the Supreme Court has upheld the power of Congress to pass legislation to protect the Americans we represent.  He has brought to his opinions a keen understanding of the distinct roles set forth in our Constitution for courts and for the democratically-elected Congress.  He has maintained a fervent respect for both.  In Gonzales v. Raich, and in Tennessee v. Lane, Justice Stevens authored the Supreme Court’s opinions upholding the actions of Congress to protect Americans.  I suspect these precedents will be even more important as the Supreme Court continues to examine laws passed by Congress to protect Americans from discriminatory health insurance policies and fraudulent Wall Street practices.

Justice Stevens also has written important decisions that involve the enforcement of laws duly passed by Congress.  He authored a powerful opinion for the Court in one of the most important environmental protection decisions in recent memory.  In Massachusetts v. EPA, the Court concluded that the Environmental Protection Agency had to live up to its name and mission in implementing the Clean Air Act, despite the Bush administration’s refusal to do so.  Justice Stevens wrote:  “Because greenhouse gases fit well within the Clean Air Act’s definition of ‘air pollutant’ we hold that EPA has the statutory authority to regulate the emission of such gases from new motor vehicles.”  The Court rejected the Bush administration’s rationale for refusing to enforce the law.  The Nation will be better served for that decision.

Some of the most important cases decided by the Supreme Court in the last decade have involved the limits of Presidential power in a time of war, and Justice Stevens has left his mark on many of them.  His experience serving his country in wartime no doubt contributed to his understanding.  In Rasul v. Bush, the Court held that our Federal courts have jurisdiction over detainees held by the Government, even though they are not citizens of the United States.  A few years later, Justice Stevens wrote for the court in Hamdan v. Rumsfeld, and concluded that our Government has to follow our laws, including the Geneva Conventions, in trying prisoners detained at Guantánamo Bay.  At their core, these decisions upheld the notion that the rule of law applies even in a time of war. 

As the most senior Justice on the Court, Justice Stevens has the authority to write the opinion of the Court when the Chief Justice is in dissent.  In two of the most important civil rights cases of the decade, Grutter v. Bollinger and Lawrence v. Texas, Justice Stevens extended the privilege of the writing the majority opinion to other Justices.  In Grutter, the Court upheld the University of Michigan Law School’s admissions policy in an opinion by Justice Sandra Day O’Connor.  Justice Stevens joined that opinion, which recognized a compelling educational interest in racial diversity.  In Lawrence v. Texas, the Court held that consensual sexual conduct was protected by the Constitution from government intrusion. The majority opinion, in which Justice Stevens joined, was written by Justice Anthony Kennedy. The impact of these two rulings on hardworking Americans was immediate; I hope they will endure.

A decade ago, the Supreme Court unnecessarily waded into the political thicket to determine the outcome of the 2000 presidential election.  In a scathing dissent, Justice Stevens lamented that the decision would damage the Court’s reputation as impartial, and it did.  He noted: “Although we may never know with complete certainty the identity of the winner of this year's Presidential election, the identity of the loser is perfectly clear.  It is the Nation's confidence in the judge as an impartial guardian of the rule of law.” 

While the public’s memory of that politically-charged decision finally began to recede, the Supreme Court again opened the floodgates, issuing its latest election-related decision in the Citizens United case.  In Citizens United, five justices with the stroke of a pen overturned a century of law to permit corporations to overwhelm and distort the democratic process.   Those five justices substituted their own preferences for that of Congress, which had built on decades of legal development to pass bipartisan campaign finance reform legislation after an open and extensive debate.  In order to reach its divisive decision granting corporations, banks, and insurance companies rights that were once were reserved for individual Americans, the Court overstepped the proper judicial role, and rejected not just the conclusions of the elected branches, but also its own recent precedent upholding the very same law it now overturned.   In what may be his most powerful dissent, Justice Stevens noted that the “Court’s ruling threatens to undermine the integrity of elected institutions across the nation.  The path it has taken to reach its outcome will, I fear, do damage to this institution.” 

I agree with Justice Stevens in both of these dissents and join him in his concern for the Court’s reputation.  Two of the three branches of government are involved in campaigns and elections.  When the American people see the courts reaching out to influence those elections, they rightly get suspicious of its impartiality. 

While I supported his confirmation, I have not always agreed with Justice Stevens.  But my admiration for his service is not based merely on the results of the cases that came before him, nor solely on his judgment or his forthrightness, but rather also on the manner in which he approached the law, and his vigilant concern for public confidence in our courts.

I have always respected the way in which Justice Stevens has conducted himself as a Justice, and the way he has explained his conclusions.  He and I share a view of government transparency that is a vital element of our democracy.  No one can question Justice Stevens’ integrity, nor his dedication to public service. 

Today, I join a grateful Nation in wishing Justice John Paul Stevens a very happy 90th birthday.  We are indebted to him for his service.  I hope the next nomination to the Supreme Court will honor his extraordinary legacy.

The choice of a Supreme Court nominee is one of the most important and enduring decisions any president can make.  A year before he died, President Gerald Ford wrote this about Justice Stevens:  “I am prepared to allow history’s judgment of my term in office to rest (if necessary, exclusively) on my nomination 30 years ago of John Paul Stevens to the U.S. Supreme Court.”  What a tribute.  No doubt every president would want to be able to say that about the quality of his Court selections.

The law is not a game to be played or a puzzle to be solved.  The law is intended to serve the people -- protecting the freedom of individuals from the tyranny of government or the mob, and helping to organize our society for the good of all.  No Justice should substitute his or her personal preferences and overrule congressional efforts to protect hardworking Americans pursuant to our constitutional role.

I am looking forward to meeting with President Obama tomorrow to discuss his selection of a nominee to succeed Justice Stevens.  Then, and in any private discussions, I will suggest that he pick someone who approaches every case with an open mind and a commitment to fairness.  Someone who will heed the Vermont marble inscribed above the entrance of the Supreme Court which pledges “Equal Justice Under Law.” 

Someone like Justice John Paul Stevens.

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