June 23, 2010 11:59 Age: 4 yrs

FACULTY VOICES: Justice For All Cases, Great and Small

By: Robert A. Schapiro

With the retirement of Justice John Paul Stevens, the U.S. Supreme Court loses a judge with an unusual ability to get the big things right by getting the little things right. Justice Stevens will be remembered for his stirring opinions in cases of great national significance.

He also should be remembered for his equally compelling commitment to justice in scores of other decisions that received little public notice. That commitment long preceded his service on the bench and helped to inform his work on the Court.

In Hamdan v. Rumsfeld in 2006, Justice Stevens wrote the majority opinion holding that even in the face of real threats of terror, the president must follow the law. The Court declared the Constitution reached into a military detention facility in Guantanamo Bay, Cuba, and offered the protection of the rule of law to the driver for Osama bin Laden.

For Justice Stevens, no person was above the law, and no person was below the law. In his view, that dedication to ensuring justice in all cases constituted the defining characteristic of a judge. In the presidential election decision, Bush v. Gore, Justice Stevens penned a stinging dissent, castigating the majority for undermining the “Nation’s confidence in the judge as an impartial guardian of the rule of law.”

His commitment to the rule of law transcended partisan boundaries. In 1997, he spoke for the Court in Clinton v. Jones, finding that the Constitution did not shield President Bill Clinton with immunity from civil suits.

Cases involving presidents are important, but rare. Justice Stevens insisted on promoting the rule of law in all cases. When I think about Justice Stevens, I think not only of Bush and Gore, of Clinton and Rumsfeld, but also of Vladimir Zatko.

It is a bedrock principle of the American legal system that lack of wealth should not translate into a denial of justice. Accordingly, courts do not charge filing fees to those who cannot afford to pay. In the early 1990s, however, the Supreme Court deviated from that practice by barring access to people it deemed frequent filers of frivolous actions. The Court refused to waive the fees for these litigants notwithstanding their poverty.

When the Court invoked the rule to bar access to one Vladimir Zatko, Justice Stevens dissented. His opinion criticized the Court for undermining its commitment to offering “equal access to justice for both the rich and the poor.”

From where does Justice Stevens’ concern for the plight of the indigent arise? At least in part from his pro bono work while in private practice. He has explained that this experience gave him a valuable perspective on the plight of criminal defendants. Summarizing the importance of pro bono work, he wrote, “In the law, as in other professions, the primary reward for human toil is not what you get for it but what you become by it.” What Justice Stevens became was a great champion of justice.

That perspective may be lost with his departure. To this day, the Court continues to invoke the Zatko rule to reject pleas from certain indigent litigants. Justice Stevens continues to dissent, but he dissents alone.

Justice Stevens pursued justice in all cases, great and small. It will be a great challenge for Elena Kagan, or whomever ends up being confirmed, to match Justice Stevens’ commitment to the rule of law in all of the diverse cases that come before our nation’s highest court.

Robert A. Schapiro, professor of law, teaches Federal Courts, Constitutional Law and Civil Procedure. He is the author of Polyphonic Federalism: Toward the Protection of Fundamental Rights (University of Chicago Press, 2009) and served as a clerk for Justice Stevens in 1991–1992

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