Supreme Court Prequel: Justice Stevens on the Seventh Circuit

Article excerpt

ABSTRACT-Justice Stevens's retirement from the U.S. Supreme Court has occasioned numerous retrospectives on his lengthy career as a Supreme Court Justice. Yet Justice Stevens's career began on the Seventh Circuit and his voting behavior and doctrinal positions on the circuit court provide a unique window into his judicial character and the roots of his thinking on important issues that continued to preoccupy him on the Supreme Court. In this Essay, I first analyze then-Judge Stevens's voting behavior on the court of appeals by examining the frequency with which he wrote separate opinions, as well as his voting interagreement with his colleagues on the circuit bench. I then discuss the doctrinal positions taken by Judge Stevens in several substantive areas, including substantive due process, gender discrimination, and election law, noting how those positions were often reiterated in Justice Stevens's opinions on the Supreme Court. The Essay concludes that Judge Stevens, like Justice Stevens, was extremely independent in his voting behavior. In terms of the ideological direction of his votes, Judge Stevens's votes did not follow a clear pattern; instead he was iconoclastic and unpredictable. Nevertheless, positions taken by Judge Stevens in several cases sounded themes and principles upon which he continued to rely even until his final term on the Supreme Court.

"There is something about the man that suggests he is capable of holding strong views and holding them independently, if need be. And with spark."[dagger]

INTRODUCTION

The retirement of Justice John Paul Stevens from the U.S. Supreme Court has resulted in a number of articles and symposia offering a retrospective on, and a celebration of, the Justice's long career on the Court.1 Focused as they are on Justice Stevens's Supreme Court jurisprudence, most of these retrospectives do not reflect on Justice John Paul Stevens's record as judge on the United States Court of Appeals for the Seventh Circuit. In this Essay, I argue that careful examination of then- Judge Stevens's decisionmaking on the Seventh Circuit offers intriguing insights into the Justice's judicial character and provides a useful roadmap to the development of his philosophy in several substantive areas of law. This Essay begins in Part I by describing Judge Stevens's voting behavior on the Seventh Circuit, with a focus on his interactions and voting alignment with his brethren on that court. In Part II, I turn to several substantive areas in which Judge Stevens's circuit court opinions are notable, either because they expressed doctrinal positions that continued to represent Justice Stevens's views on the Supreme Court or because they demonstrate how his views have evolved over time. The Essay concludes by considering the ways in which Judge Stevens's record on the Seventh Circuit sheds light on his judicial character and philosophy, which ultimately shaped Justice Stevens's record on the Supreme Court.

I. THE SEVENTH CIRCUIT: 1970-1975

Justice Stevens's judicial service began five years prior to his confirmation as a Supreme Court Justice when he was appointed by President Richard Nixon to fill a vacancy on the Seventh Circuit.2 At the time of his Seventh Circuit nomination, then-Judge Stevens was fifty years old and a partner in the Chicago firm of Rothschild, Stevens, Barry, and Myers. Judge Stevens's confirmation to the Seventh Circuit was noncontroversial. Although appointed by President Nixon, Judge Stevens's nomination to the circuit was championed by his former University of Chicago classmate Senator Charles Percy, viewed at the time as one of the "liberal voices" in the Republican Party.3 As a result, his selection had no clear ideological valence, nor did Judge Stevens's record as an attorney suggest one.4 His confirmation hearing, scheduled with five other judges, lasted just over an hour and was described as "little more than a formality."5

Judge Stevens took the oath of office for his circuit court seat on November 2, 1970 and decided his first case by December 1 of that same year. …