The retirement of Associate Justice John Paul Stevens brings to a conclusion the second-longest tenure in the history of the U.S. Supreme Court. At the term’s end, Justice Stevens will have served 34 ½ years, just two years shy of his immediate predecessor, Associate Justice William O. Douglas.  Much has changed over the past three and a half decades.

Justice Stevens was nominated by President Gerald Ford and confirmed by the Senate in 1975 as a moderate conservative; he will leave the bench as a leader of the Court’s liberal wing. As is the case with all justices, he undoubtedly changed his views somewhat over the years, but Stevens attributes the shift mainly to the Court’s moving to the right rather than his drifting to the left. The Senate confirmed Stevens by a whopping 98-0 vote, a mere 17 days after he was nominated. His successor, no doubt, will take much longer to confirm, and no one expects such unanimity from today’s Senate.

Click here to read BJC Executive Director Brent Walker's entire column on John Paul Stevens.

Stevens has often been characterized as eccentric, creative and quirky. These adjectives have been used to describe his appearance (the only justice always to sport a bow tie) as well as his jurisprudence in both reasoning and in result. Despite this uniqueness and his long service on the Court, Stevens has maintained a low profile and relative anonymity. For example, I can recall some 20 years ago walking in front of the Supreme Court building and seeing Stevens bounding down the front steps (presumably going to lunch) and making his way through a throng of tourists. No one, except for me, appeared to recognize him. The same thing would probably happen today.

Still, I think history will report that Stevens’ influence on the Court was significant. Jeffrey Toobin, Supreme Court analyst and author of The Nine, observed that the justice who assigns an opinion is as important as the justice who writes the opinion. For the past 16 years, Stevens has been the senior Associate Justice. As such, when the Chief Justice is not in the majority, the senior associate in the majority assigns the opinion either to himself or to one of his colleagues. The ability to assign opinions is an important political tool in building intra-Court coalitions and assembling viable majorities. By all accounts, Stevens was astute in this role, often nabbing Associate Justice Sandra Day O’Connor or, more recently, Associate Justice Anthony Kennedy to round out a majority of five.

Stevens’ contribution to religion clause jurisprudence and his church-state legacy will be judged less significant than in other areas. Although he participated in 65 church-state cases, he authored or assigned only five majority opinions, and one can point to scant quotable prose. Moreover, Stevens’ idiosyncratic judging is revealed more clearly here than in any other area of constitutional decision-making.

Almost every justice over the past half century has exhibited either a strong or weak view of both the Establishment Clause and Free Exercise Clause. For example, Associate Justices William Brennan, Harry Blackmun and David Souter were exponents of a robust Establishment Clause and a strong Free Exercise Clause. Others, such as Chief Justice William Rehnquist, Associate Justice Antonin Scalia and Associate Justice Clarence Thomas, have exhibited an attenuated view of the two clauses. Stevens is the only Justice to have a strong commitment to the Establishment Clause and a weak Free Exercise jurisprudence. *

Establishment Clause cases can be divided into two categories: those dealing with government-sponsored religious speech or expression and those with government funding of religious enterprises and activities. Justice Stevens has opined that both violate the First Amendment’s Establishment Clause.

With respect to religious expression, it is interesting to note that the first church-state case in which Justice Stevens authored the majority opinion was Wallace v. Jaffree (1985) some 10 years after he arrived on the Court. In that case, the Court struck down a mandatory moment of silence law in Alabama that mentioned prayer as a preferred activity in the public schools during the moment of silence. Similarly, Stevens authored the majority opinion in Santa Fe Independent School District v. Doe (2000) that struck down the practice of selecting by majority vote a student to lead prayer at a high school football game where the context clearly indicated government sponsorship.

 Stevens has been dubious about cases involving equal access for religious clubs in public schools. In Board of Education v. Mergens (1990), a case upholding the constitutionality of student-led religious clubs under the Equal Access Act of 1984, he was the lone dissenter. And, in Good News Club v. Milford Central School (2001), Stevens dissented from the Court’s approval of religious clubs in elementary schools after class.

Stevens was equally firm in his belief that government should not fund pervasively religious organizations and religious activities — neither directly nor indirectly. He readily embraced the Court’s decisions in the 1980s condemning government support for a variety of religious schools and their programs. He dissented vigorously in recent cases that overturned those decisions and loosened the restraints on government funding of religious education (as in Agostini, 1997, and Mitchell, 2000). Stevens also dissented in the narrowly divided (5-4) Court decision upholding the use of vouchers under certain circumstances for religious education (Zelman, 2002).

Finally, although a staunch supporter of free speech rights, Justice Stevens dissented in a free speech case that approved governmental funding via student activity fees of a magazine expressing a religious viewpoint that was published by a student organization (Rosenberger, 1995).

On the First Amendment’s Free Exercise side, Justice Stevens has never required accommodation and sometimes would not even permit it. Perhaps the best example of this is Justice Stevens’ participation with the majority (along with four conservatives) in the Native American peyote case that gutted the Free Exercise Clause of vigorous protection for religious liberty (Smith, 1990).

Consistent with this narrow understanding of the Free Exercise Clause, Stevens joined the Court’s slim majority in negating the right of a Jewish psychiatrist serving in the Air Force to wear a yarmulke while in uniform (Goldman, 1986) and joined the Court’s minority condemning legislative prayer before legislative bodies and presumably legislative chaplains (Marsh, 1983).

Along the same lines, Stevens has been unsympathetic to most religion-specific legislative accommodations such as tax exemption for religious publications (Texas Monthly, 1989), mandatory accommodation of religious exercise by employees in the workplace (Estate of Thornton, 1985), and the Religious Freedom Restoration Act as applied to the states (City of Boerne, 1997).

However, consistent with Justice Stevens’ reputation for independence, we must avoid hasty generalizations. In fact, he has been from time to time sympathetic to the accommodation of religion, particularly in the case of the rights of prisoners (O’Lone, 1987, and Cutter, 2005), the reasonable accommodation of religious practice in the workplace (Amos, 1987), the right of ministers to serve as public officials (McDaniel, 1978) and the right of minorities not to suffer unfavorable religious regulation (Lukumi, 1993, and Gonzalez, 2006).

Other aspects of Justice Stevens’ church-state jurisprudence also bear mentioning. Generally speaking he has taken a narrow view of the church autonomy doctrine — the principle that forbids judicial interference in ecclesiastical and internal decision of church bodies based on theology, polity and administration. In Serbian Eastern Orthodox Diocese (1976), he dissented along with then-Justice Rehnquist from the Court’s determination that it should not be involved in a dispute over the defrocking of a bishop in the Serbian Orthodox Church. Justice Stevens also joined in a decision that, on a limited basis, allows the courts to adjudicate certain autonomy issues, such as “neutral principles of law” (Wolf, 1979).

Another issue pervading the discussion at Justice Stevens’ retirement is the religious affiliation of the remaining justices. When Justice Stevens ascended to the High Court, he was one of eight Protestants (Justice Brennan was the sole Catholic); when he leaves, no Protestants will be left on the Court (six Catholics, two Jews). If Supreme Court nominee Elena Kagan is confirmed, she will be the third Jewish member of the current court.

At any time during most of the 20th Century, at least seven Protestants populated the Court with often (although not always) a “Catholic” seat and “Jewish” seat. The fact that this ratio has been essentially inverted signals, perhaps, that we have begun to take seriously the “no religious test” principle in Article VI of the Constitution. In today’s post-denominational religious milieu, other issues seem to eclipse religion as important characteristics — gender, ethnicity, judicial experience, and constitutional philosophy.

While we should embrace the “no religious test” principle, I think we should strive for some diversity on the Court with respect to religion. Nevertheless, the proper question is not whether there are too many Catholics, but “what kind of Catholics?” When it comes to their church-state jurisprudence, I gladly will take another Bill Brennan (a Catholic) over another Bill Rehnquist (a Lutheran) anytime. By way of comparison, there have been no Baptist justices appointed since Hugo L. Black in 1937 and Earl Warren in 1953.

Justice Stevens has been a remarkable justice. He has stood up for church-state separation. With regard to his Establishment Clause jurisprudence, he has been consistently firm; as to Free Exercise and church autonomy he has been often too soft. I hope Stevens’ replacement will incorporate his appreciation for the Establishment Clause but have a more robust vision for the protections afforded by the Free Exercise Clause and the First Amendment doctrine that ensures the autonomy of religious organizations. These considerations — what the new justice thinks about religious liberty — are far more important than the prospective justice’s religion.

*Arguably Justice O’Connor and Associate Justice Stephen Breyer may be Stevens’ mirror image here. They both tend to have a strong understanding of Free Exercise, but a slightly weaker view of the Establishment Clause, particularly with respect to government funding issues.