Newly opened records that belonged to Supreme Court Justice John Paul Stevens give the public a behind-the-scenes glimpse at his decades on the court, including the tense struggle over the 2000 presidential election and major cases on affirmative action and abortion.
Documents that became available Tuesday show the justices' strong, personal reactions as they considered Bush v. Gore, with conservatives complaining about the tone of their liberal colleagues' writings.
They also show Stevens crowing about the court's 2003 decision upholding affirmative action, which he termed a “great victory.” The current, more conservative court in contrast seems likely to do away with that very decision by early summer.
As a group, the papers reflect a different time on the court, which was more moderate and less divided in the years before Stevens retired in 2010. Today, the court has six conservatives and three liberals. Just last year conservatives won major victories on issues including gun rights and abortion, overturning Roe v. Wade in a momentous decision that gave states the ability to ban abortion after nearly 50 years.
Bush v. Gore, which ended Florida’s presidential recount and sent Republican George W. Bush to the White House over Democrat Al Gore was perhaps the most momentous case during Stevens' tenure. His papers show that two justices in the majority that ruled for Bush griped privately that the liberal justices’ dissents were overly harsh and would contribute to negative public reaction.
“The dissents, permit me to say, in effect try to coerce the majority by trashing the Court themselves, thereby making their dire, and I think unjustified, predictions a self-fulfilling prophecy,” Justice Anthony Kennedy, the author of the main opinion, wrote in a memo.
Justice Antonin Scalia noted in another memo that he “is the last person to complain” about hard-hitting dissents, having written his fair share. Still, Scalia wrote, “Going home after a long day, I cannot help but observe that those of my colleagues who were protesting so vigorously that the Court’s judgment today will do it irreparable harm have spared no pains — in a blizzard of separate dissents — to assist that result.”
Stevens himself was the author of one of those dissents, writing: “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. It is the nation’s confidence in the judge as an impartial guardian of the rule of law.”
Polling after the Bush v. Gore decision did in fact show a modest decrease in confidence in the court and, like for many of the country’s democratic institutions, confidence has waned in the last two decades. But more recently, polling after the court’s abortion decision showed a sharp drop in public approval.
Stevens, who died in 2019, is among 38 justices who have donated their papers to the Library of Congress, which is adjacent to the Supreme Court. His papers include drafts of opinions, communications between the justices and Stevens' notes from the justices' private conferences. Much of the material is typed, but there are also handwritten notes, though Stevens' cramped and angular handwriting can be hard to decipher.
Stevens was appointed to the court in 1975 by Republican President Gerald Ford and at first was considered a centrist, but he came to be seen as the court’s leading liberal. Stevens said that he hadn’t changed but that the court had grown more conservative around him. He did change his views on some issues, however. He came to believe the death penalty is wrong and morphed from a critic of affirmative action to a supporter.
In the Grutter v. Bollinger case from 2003, Stevens was in the majority that voted to preserve affirmative action. Shortly before Justice Sandra Day O'Connor's opinion for the court came out, Stevens wrote to fellow liberal Justice David Souter: “If either one of us had written it, we would have said much more, but on balance we really have a great victory.”
Other cases covered by the newly available documents include:
— The court's 1992 decision in Planned Parenthood v. Casey, which reaffirmed the right to abortion and was thrown out last year along with Roe v. Wade. The court's most recent abortion decision became public in an explosive leak ahead of its publication, and Stevens' papers show there were similar concerns about a leak in Casey. After an article in Newsweek magazine about what was allegedly going on inside the court in regards to the case, Chief Justice William Rehnquist sent a note admonishing the justices' law clerks they were to communicate as little as possible with members of the press. “In the case of any matter pending before the court, the least possible communication is none at all,” he wrote, underlining the last three words.
— The court's 2002 opinion in Atkins v. Virginia that outlawed the execution of people with intellectual disabilities, then referred to as mentally retarded. Stevens was the author of the opinion, and a draft of it began: “Like children, the mentally retarded…” Kennedy wrote that the phrasing was “likely to cause disappointment, perhaps even resentment, among persons and groups who work to advance the cause of retarded persons.” Stevens omitted the reference in the final 6-3 opinion, which Kennedy joined.
The Library of Congress first made a selection of Stevens' papers available in 2020. Those papers largely covered 1975 to 1984. The newly opened selection includes cases decided as recently as the middle of 2005.
The justices' papers are considered personal property, and nothing dictates the justices must keep any records or make them public. Stevens is among several justices, along with Harry Blackmun and Thurgood Marshall, whose papers became public while at least one colleague still was on the bench.
Stevens' most recent files covering the period of 2005 to 2010, when the court ruled in two major gun rights cases, will not be open until 2030. That most recent period is when Stevens served with several current members of the court: Chief Justice John Roberts, Justice Samuel Alito and Justice Sonia Sotomayor. The only current justice represented in the newly opened papers is Justice Clarence Thomas.
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Associated Press reporter Hannah Fingerhut contributed to this report.
