In 1975, President GERALD R. FORD sought a "moderate conservative" of unimpeachable professional qualifications to fill the Supreme Court seat vacated by WILLIAM O. DOUGLAS. John Paul Stevens of Chicago, an intellectually gifted antitrust lawyer, former law clerk to Justice WILEY B. RUTLEDGE, occasional law professor, and federal court of appeals judge for the preceding five years, seemed to fit the bill. Justice Stevens in fact has more often been described as a "moderate liberal" of sometimes unpredictable or even idiosyncratic bent or as a "moderate pragmatist." A prolific writer of separate opinions frequently offering a different perspective, he generally is not a coalition builder. Even the common term "moderate" reflects his agreement in result with sometimes one and sometimes another more readily identifiable group of Justices on the Court or his balanced accommodation of community rights to govern and individual freedoms rather than his judicial substance or style.
Such labels usually mislead more than instruct, and in Justice Stevens's case conservative, moderate, and liberal strands of constitutional thought blend in a singular combination. He shares the judicial conservatism of Douglas's (and thus his) predecessor, Justice LOUIS D. BRANDEIS, who frequently urged the Court to reach constitutional questions only when necessary and to resolve constitutional disputes as narrowly as possible. He shares the moderate rationalist's antipathy to excessive generalization that Nathaniel Nathanson, Brandeis's law clerk and Stevens's admired constitutional law teacher, abhorred. He also shares the liberal substantive vision of Justice Rutledge, whom Stevens once admiringly described as a Justice who "exhibited great respect for experience and practical considerations," whose "concern with the importance of procedural safeguards was frequently expressed in separate opinions," and most importantly, who believed that "the securing and maintaining of individual freedom is the main end of society." Each of these elements of his intellectual lineage appear centrally in Justice Stevens's own constitutional writings.
His particular mixture of judicial restraint and vigorous judicial enforcement of individual liberty, although akin to those of Brandeis and Rutledge, sets Stevens apart from his contemporaries on both the BURGER COURT and the REHNQUIST COURT. His is not the judicial restraint of extreme deference to government authority, but the judicial restraint of limiting the occasions and the breadth of Supreme Court rulings, particularly when he concludes that a ruling is unnecessary to protect liberty. His adjudicative approach is to balance all the relevant factors in a particular context with thorough reasoning whose ultimate aim is resolving the particular dispute, not declaring broad propositions of law. Yet, because Stevens sees protection of liberty as a peculiarly judicial obligation, there is no conflict for him between judicial restraint and liberty-protecting judicial intervention, however narrow the basis of that intervention might be. Thus, his frequent criticism of "unnecessary judicial lawmaking" by his colleagues, although it extends to reliance on any intermediate doctrinal standard of review that is a judicial gloss on constitutional
text, is most bitterly voiced when judge-made doctrines stand in the way of vindicating individual freedom. In Rose v. Lundy (1982), for example, his dissent objected to several judicially imposed procedural obstacles to federal HABEAS CORPUS review of claims of fundamental constitutional error in the conviction of state criminal defendants. In contrast, Stevens, always sensitive to matters of degree, expressed his inclination to address constitutional claims more readily the more fundamental they are and to husband scarce judicial resources for the occasions when judicial action is most acutely needed. Accordingly, he urged the Court to confine "habeas corpus relief to cases that truly involve fundamental fairness."
The same preference for employing JUDICIAL POWER to secure and maintain individual freedom, rather than to vindicate government authority, appears in other positions he has taken on the proper scope of the Court's institutional role. He has waged a lengthy, but largely unsuccessful, battle to convince the court to curtail its use of discretionary certiorari jurisdiction to review cases in which the claim of individual liberty prevailed in lower courts. In NEW JERSEY V. T. L. O. (1984) he inveighed against the Court's "voracious appetite for judicial activism in its Fourth Amendment jurisprudence, at least when it comes to restricting the constitutional rights of the citizen." To Stevens, the Court should not be concerned with legitimating prosecution practices or other governmental controls that lower courts have erroneously restricted through overly generous interpretations of federal law. In general, he sees dispersal of judicial power as a positive good, especially when state courts restrain state officials from interfering with individuals, even when those courts have applied the federal Constitution more stringently than the Supreme Court might. He has argued with respect to STARE DECISIS that the Court should adhere more readily to prior rulings that recognized a liberty claim than to those that rejected one. Similarly, he appears more likely to find a "case or controversy" calling for decision on the merits in an individual challenge to government action than in review of a claim that the government's prerogatives have been unreasonably limited. This distinction can be seen in a comparison of his dissents on the issue of standing in ALLEN V. WRIGHT (1984) and Duke Power Co. v. Carolina Environmental Study Group (1978). Similarly, he has argued for reduction in the Court's reliance on the doctrine of " HARMLESS ERROR, " which allows convictions to be affirmed where arguably nonprejudicial error has occurred; in his view, saving convictions should have a low priority.
His substantive conception of the source and content of constitutional liberty is as distinctive as his view of the systemic judicial role in protecting it. Unlike protections for PROPERTY RIGHTS, which Stevens agrees originate in positive law, he believes liberty stems from NATURAL LAW. His dissents in Hewitt v. Helms (1983) and Meachum v. Fano (1976) illustrate his belief that even justifiably confined inmates retain claims to liberty, including the right to be treated with dignity and impartiality. The source of that liberty "is not state law, nor even the Constitution itself." Rather, drawing on the DECLARATION OF INDEPENDENCE, he found it "self-evident that all men were endowed by their Creator with liberty as one of the cardinal inalienable rights." Not surprisingly, given this view, he has embraced judicial recognition of a wide spectrum of textually unenumerated fundamental liberties that cannot be infringed without strong justification, including those implicated by criminal and civil commitment proceedings, termination of parental rights, loss of CITIZENSHIP, restrictions on ABORTION and consensual sex, and laws limiting prisoners' rights to refuse antipsychotic drugs and terminal patients' rights to refuse unwanted, life-prolonging medical intervention. As to the last, his dissent in Cruzan v. Missouri Department of Health (1990) opined that "choices about death touch the core of liberty" and are "essential incidents of the unalienable rights to life and liberty endowed us by our Creator" and that the "Constitution presupposes respect for the personhood of every individual, and nowhere is strict adherence to that principle more essential than in the Judicial Branch." Stevens has been particularly distressed by the Court's rejection of a wide liberty to retain counsel in government-benefit disputes and the right to government-provided counsel in proceedings to terminate parental status, because he thinks these rulings substantially undervalue the fundamental liberty of legal representation. Of his general approach, he has written that judges are to use the common-law method of adjudication to ascertain the content of liberty: "The task of...