A Lawyer's Lawyer

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					The Last Word

A Lawyer’s Lawyer
Eduardo M. Peñalver

     t was my privilege to serve as Justice
     John Paul Stevens’s law clerk dur-
     ing the tumultuous 2000 term, the
     year the Court inserted itself into the
presidential election, halting the recount of
votes in Florida’s contested race and hand-
ing the presidency to George W. Bush.
   Like many other Americans, I was disillusioned by the seem-         nancial burdens. On the other hand, Stevens was willing to rule
ingly lawless nature of the Court’s intervention. That experience      in the government’s favor in cases protecting wetlands when the
was redeemed, however, by the opportunity to observe Justice           regulatory burdens operated through more generally applicable
Stevens at work. In Bush v. Gore and every other case that term,       rules—ones he considered less prone to unfairness and abuse.
Stevens exercised his duty in a conscientious and principled way.          Stevens was a cautious judge, in the best tradition of the com-
And he did it with a humility that continues to inspire me.            mon law. He eschewed sweeping pronouncements in favor of
   Even after decades on the highest court, Stevens remained           an incrementalism that respected precedent and also preserved
a lawyer’s lawyer. He wrote the first drafts of all his opinions—      space for future judicial discretion. On a Supreme Court where
a task most justices delegate to their clerks—and he seemed to         judicial modesty was espoused (at least at confirmation hearings)
revel in the subtleties of each case with a litigator’s glee. He de-   far more than it was practiced, Stevens stood out for his consis-
voted a lot of time and attention to the “fact” section of his opin-   tent reluctance to arrogate power to the Court. His most cited
ions. When working on a case, he would wander into the clerks’         opinion, Chevron v. Natural Resources Defense Council (1984),
office toward the end of the day to talk. An avid sports fan, he       affirmed a rule of judicial deference toward the expert judgment
would frequently begin these conversations with some discus-           of administrative agencies. His much-criticized (though, I think,
sion of the latest Redskins debacle or his fantasy golf league.        correct) opinion in Kelo v. New London (2005) reflected a sim-
But then he would steer the subject toward the cases at hand,          ilar judicial modesty. Although a well-orchestrated public-rela-
bouncing legal theories off the clerks or marveling at some new        tions campaign demonized the Court’s decision in Kelo, saying
factual detail he had discovered in the record.                     
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Description: When the Penn Central Transportation Company, owner of Grand Central Terminal, challenged New York City's popular landmark-preservation statute (which frustrated the company's plan to build an office tower atop the station), Stevens sided with the dissenters, arguing that the landmark-designation process unfairly singled out individual property owners and made them bear crippling financial burdens. In his pithy dissent in Bush v. Gore, Stevens warned that, although we may never know with complete certainty the identity of the winner of this year's presidential election, the identity of the loser is perfectly clear.
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