On all accounts (click here) and on all the evidence, Justice John Paul Stevens is a truly honorable man and American patriot; and I am loath to argue needlessly with a dedicated fellow-golfer. His latest book, alas, prompts less generous sentiments. It is exasperating, and its principal message is wholly unintended: At some level, you want to think about law the way Justice Stevens did, and does. On second thought, you really don’t....Justice Stevens (click here) served on the Supreme Court for thirty-five years and on the Seventh Circuit for five years before that, so summarizing his judicial career will be a multi-year, multi-volume project for legal scholars. But Justice Stevens’s underlying approach to judging may be easier to summarize. Two aspects of his approach stand out in my mind—namely, the importance he attached to the actual facts of a case and his deep respect for the law.
First, although the Supreme Court’s primary concern is with legal issues of broad significance, Justice Stevens never lost sight of the fact that the Court decides real cases, with real parties and real facts. Indeed, from his perspective, the parties and what happened to them are central. Not because his decisionmaking was driven by “empathy”—at least not in the sense that the word has been tossed around by politicians and the media in connection with the confirmation process for recent Supreme Court appointees—but because, to a common law judge, context should matter, and matter a lot. That’s why Justice Stevens’s opinions often include detailed explanations of the facts of a case, explanations that often reflect research into the record going well beyond what the parties provided in their briefs. It’s also why Justice Stevens often asked carefully crafted hypothetical questions at oral argument (questions that would make the most experienced advocates shudder)—to test how the legal principles the Court was being asked to adopt in one context would work in others....
