A Clerk’s View

Abstract

A Clerk’s View CLIFF SLOAN One enduring challenge ofbeing a law clerk for Justice Stevens was trying to prove, at least to yourself, that the Justice actually needed a clerk. He could do it all himself—and he frequently did. It wasn’tjust the fact that he drafted his own opinions, although that was definitely part ofit. (What exactly do you say as a young, recent lawschool graduate when he gives you his polished and carefully conceived draft? “Good effort, Justice, I think you’re coming along nicely”?) And it wasn’t just the fact that he would read the same mountain of briefs as you and then come up with an insight that nobody had seen and that irrevocably turned the case on its side for all concerned, including the lawyers and the other Justices. It was also the fact that he already pos­ sessed a vast, intimate, and easy knowledge of seemingly all legal subjects, including, of course, the decisions ofthe Supreme Court. In his modest, genial manner, he always assumed that everybody shared that same familiarity. I remember him commenting collegially that it was redundant to include the year of the decision in Supreme Court case citations. If you knew the reporter volume number, then, of course, you already knew the year. My co­ clerk and I nodded sagely. Justice Stevens’ profound and lasting con­ tributions to the Court’s jurisprudence have been chronicled elsewhere,1 and they will en­ dure for generations. He is the “rule of law” Justice, and he blazed trails on issues rang­ ing from civil liberties and national security2 to the presidency,3 the right to liberty,4 the First Amendment in cyberspace,5 and numer­ ous other areas.6 From a former clerk’s per­ spective, he stands for all ofthat and for some­ thing more—an example about how to live a life. Justice Stevens taught us to do the right thing. Not in a preachy, self-righteous way, but rather through his own habits and practices. Every case is important—because that’s the right thing to do. A judge gives every case a fair hearing, with his or her all—because that’s the right thing to do. You come to your own views carefully and honestly, and then you lay them out for the world to see—because that’s the right thing to do. Justice Stevens frequently tells a story from his time on the Seventh Circuit in the early 1970s. Father James Groppi, an an­ tipoverty protestor, led a group that disrupted A CLERK’S VIEW 199 Members of the Supreme Court posed underneath a portrait of Abraham Lincoln in the East Room of the White House in 1985 with Ronald Reagan. Justice Stevens is at left wearing his signature bow tie. Justice Stevens and Chief Justice Roberts were photographed on the day of Roberts' investiture in 2005. Stevens had sworn in Roberts at a White House ceremony several days earlier. 200 JOURNAL OF SUPREME COURT HISTORY Justice Stevens served on the Supreme Court for almost thirty-five years, having been appointed by Gerald Ford in 1975. Only William 0. Douglas and Stephen J. Field had longer tenures. the Wisconsin legislature by occupying the floor of the Assembly. Groppi was cited for contempt and jailed, without any procedu­ ral safeguards. Then-Judge Stevens dissented from the Seventh Circuit’s en banc decision to uphold the contempt punishment, and he wrote extensively on the lack ofdue process.7 At the time, he felt certain that his dissent meant that he was giving up any chance of going on the Supreme Court. This was the height of ten­ sions over unlawful and disruptive protests, after all, and President Nixon was in office. Dissenting on behalf of a notorious protestor was no way to advance a judicial career. But Justice Stevens knew what he had to do. In the end, Justice Stevens’ position was unani­ mously approved by the Supreme Court,8 and his courageous dissent was hailed as one of his important contributions when he was nom­ inated to the Court. I know more than one clerk who has made a life decision to follow his...