Gadfly to the Brethren

One day last fall a lawyer for the oil industry stood before the Supreme Court and urged the nine robed Justices to throw out a federal regulation limiting the amount of dangerous benzene vapor permitted in the workplace. Justice John Paul Stevens, the newest member of the court, leaned forward and put it squarely to the attorney: "If you win this case, isn't it true that some people may die as a result?" It was a typically pointed question from Stevens, but as befits a man renowned for his skill at the bridge table, he did not tip his hand: he ended up writing the lead opinion in a decision throwing out the benzene regulation.

Since his 1975 swearing-in as the 101st man to serve as a Justice, Stevens has brought a fresh approach to his work. On a court noted for its fragmentation and diversity, Stevens is the extreme case, a personal loner and a legal maverick. Yet he has won the respect of the other Justices for his originality and ability to find new angles on old ideas (he once casually asked a clerk to "rethink" the history and meaning of the 14th Amendment's equal protection clause). Says one of his colleagues: "If there is any conceivable new way to approach a case or a legal issue, he'll find it."

It seems safe to say that Gerald Ford had no idea what he was getting when he nominated Stevens to fill the seat of William O. Douglas. The son of a well-to-do businessman, Stevens clerked for Justice Wiley Rutledge 32 years ago, then made a career as an antitrust specialist in Chicago. When he moved from the federal appeals court in Chicago, he was viewed as a capable and conventional judge with moderate political views. Thus far, Stevens has surprised observers by siding often with the liberal Justices. Those reckless enough to label him at all regard him as left of center. "But he gets there in peculiar ways," says Stanford Law Professor Gerald Gunther.

Sometimes, of course, he does not get there at all. When the court handed down its "seven dirty words" decision two years ago, Stevens wrote for the majority in giving the Government a potentially broad new right to control what comes over the air waves. In the two major affirmative action cases he has participated in, one involving medical school admissions and the other a construction grants set-aside, Stevens has voted against the programs.

This independence, which has helped earn him the nickname "Even Stevens," can rub some nerves a little raw. Stevens has set himself up as a gadfly who persistently challenges his brethren. "He's thought it important to say what's on his mind, whether it's persuasive or not," observes Yale Law Professor Paul Gewirtz. "That irritates some Justices." Adds Georgetown Law Professor Dennis Hutchinson: "He seemed prepared in many cases to, if not exactly reinvent the wheel, then at least reinterpret it. In every major case, he has to have his own little John Paul Stevens theory."

That theory is typically enunciated in blunt, incisively written opinions, with what one legal observer calls "the best opening lines since Greta Garbo." Typically, he starts by writing a stream-of-consciousness memo, and then his clerks convert it to the standard format. Stevens' opinions may become increasingly significant. His liberal votes take on a special prominence because of the diminished influence in recent years of old-line liberals William Brennan and Thurgood Marshall. So far, his novel theories and poor salesmanship have prevented him from becoming a leader. But Stevens is well aware that many a lonely dissent of the past is now law; he expects his impact to take time. And despite open-heart surgery in 1974, Stevens--at 60 the second youngest justice--is likely to be on the court for a long time to come.

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