JUSTICE STEVENS, THE WRITER.

Author:West, Sonja R.
Position:A - Washington University School of Law 150th Anniversary Commemorative Issue

In any discussion about United States Supreme Court Justice John Paul Stevens, you're likely to hear him labeled in a variety of ways--as a brilliant "judge's judge," (1) the highly successful leader of the Court's more liberal wing, (2) the prolific "maverick," (3) and a shrewd questioner from the bench. (4) You might also hear him described simply as a polite and humble Midwesterner, bow-tie aficionado and diehard Cubs fan. Yet while Justice Stevens is and was all of these things, there is another important title he richly deserves yet often does not receive--Justice Stevens, the excellent writer.

When considering Justice Stevens's writing on the Court, much of the attention is placed on his process rather than his final product. It is well known, for example, that he was one of the only justices on the Court who consistently wrote his own first drafts--a practice, he once explained, that "helps you think through a case, and when you write it out yourself, you often leam things about the case that you hadn't realized." (5) He is also often praised for his in-depth loyalty to the facts (6) and his resistance to expanding a case into something it is not. As he once stated: "[I]t is not our job to apply laws that have not yet been written." (7)

But it was at this point, after he parsed the facts and homed in on the legal issues, that Justice Stevens, the Writer, would take over. Having made up his mind regarding the proper outcome of the case, Justice Stevens would masterfully employ the many implements of the writer's toolbox--delightful turns of phrases, creative analogies, memorable word choices and impassioned moments of eloquence--to make his points. Luckily, thanks to his exceptionally long tenure on the Court (8) and his propensity to author separate opinions, he left us with a treasure trove of his writings to enjoy. (9)

In this essay, I strive to celebrate the unsung writing talents of Justice Stevens. This is by no means meant to be a serious linguistic study of his writings, nor is it an exhaustive overview. My goal, rather, is simply to highlight his skills as a wordsmith with some of the most memorable examples. What follows is a collection of snippets of Justice Stevens's writing drawn from my own reservoir of personal favorites and an informal survey of other former Stevens clerks.

HUMOR

When asked to share favorite pieces of Justice Stevens's writing, many of his admirers first brought up the times when Justice Stevens was funny. Yes, that's right, funny. Of course, anytime someone brings up the subject of Supreme Court justices and humor, it generally requires a slight lowering of the bar for what counts as "funny." This is no doubt because the work of the Court as a whole is very serious. This sober backdrop is precisely why it can be so surprising whenever a justice inserts a moments of lightheartedness. And while the justices do occassionally crack jokes during oral argument, (10) comedy is far less likely to appear in the Court's written decisions. Yet Justice Stevens would, on select occasions, employ humor in his written opinions. And he did so not just to make the reader grin, but often to emphasize the weakness or irrationality of the other side's arguments.

For example, in the 2007 case of Morse v. Frederick, the Court addressed the question of whether a public high school violated the free speech rights of one of its students when it suspended him for displaying a banner reading "Bong Hits 4 Jesus" at a school-sanctioned event. (11) The majority concluded that there was no constitutional violation, holding that schools can regulate student speech when the student advocates illegal drug use.

Writing in dissent, Justice Stevens took issue with the Court's ruling, arguing that the majority was upholding a viewpoint-based regulation. But he also was not convinced that the student's cryptic message was actually advocating illegal drug use. He was further skeptical that any of his classmates would interpret the message that way and, if they did, that it would actually cause them to do drugs. To make his point, Justice Stevens used humor and repurposed the Court's most famous line regarding student speech rights (12):

Admittedly, some high school students (including those who use drugs) are dumb. Most students, however, do not shed their brains at the schoolhouse gate, and most students know dumb advocacy when they see it. The notion that the message on this banner would actually persuade either the average student or even the dumbest one to change his or her behavior is most implausible. (13) In another memorable example, Justice Stevens again turned to humor to expose what he viewed as the absurdity of the opposing position in the 1976 case of Young v. American Mini Theaters, Inc.. (14) This case considered the constitutionality of city zoning ordinances that differentiated between movie theaters that showed "adult" films and those that did not. Writing for the Court, Justice Stevens held that the zoning ordinances did not violate the First Amendment, because they did not censor such films but simply placed limitations on where they may be shown. He further noted that while political speech went to the core of our freedom of speech, "few of us would march our sons and daughters off to war to preserve the citizen's right to see 'Specified Sexual Activities' exhibited in the theaters of our choice." (15)

In other cases, he appeared to be relying on his own personal experience to frame the joke, such as his dissent in FCC v. Fox Television Stations, Inc., when he noted: "As any golfer who has watched his partner shank a short approach knows, it would be absurd to accept the suggestion that the resulting four-letter word uttered on the golf course describes sex or excrement and is therefore indecent." (16) Another time he seemed to be teasing his younger colleagues' driving abilities when it came to viewing a video of a high-speed police chase. Dissenting from the Court's holding that the police officer's use of deadly force during the chase was warranted, he made this observation in a footnote:

I can only conclude that my colleagues were unduly frightened by two or three images on the tape that looked like bursts of lightning or explosions, but were in fact merely the headlights of vehicles zooming by in the opposite lane. Had they learned to drive when most high-speed driving took place on two-lane roads rather than on superhighways--when split-second judgments about the risk of passing a slowpoke in the face of oncoming traffic were routine-- they might well have reacted to the videotape more dispassionately. (17)...

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