The Impartial Justice

A decade ago, Justice John Paul Stevens—who passed away yesterday at 99—told me he was a “judicial conservative.” Stevens, who was then widely seen as the leader of the liberal opposition on the Supreme Court, resisted the suggestion that he had become more liberal in his then-32 years on the high court. He insisted that it was the Court itself that had changed, becoming far more conservative over the past three decades.

In our conversation, three consistent themes in his jurisprudence emerged: his belief in the duty of the government to be neutral; the duty of judges to be transparent; and the need for judges to interpret the Constitution in light of the entire scope of its history, including the post–Civil War amendments, rather than stopping in the founding era. (Both the June 2007 interview and the New York Times Magazine article I produced from it offer more expansive accountings of his thought.)

Justice Stevens explored each of these themes in riveting detail in his new, 531-page book, The Making of a Justice: Reflections on My First 94 Years, published earlier this year. The book is perhaps the most candid account ever written by a sitting or retired justice about the internal deliberations in all the major cases decided during each year of his long tenure, from 1974 to 2010. The Making of a Justice confirms that Stevens’s concern with government neutrality, judicial transparency, and living constitutional originalism stemmed from early experiences in his astonishingly long and productive judicial career.

[Read: A conversation with John Paul Stevens]

Above all, Stevens defined the rule of law as the obligation of the government to behave impartially“Because it is. You’re right that in the gerrymandering business, it seems to me that one of the overriding principles in running the country is the government ought to be neutral. It has a very strong obligation to be impartial and not to use the power to advance political agendas or personal agendas. That’s just one of the most basic principles that cuts through all sorts of law.”