it and -- of course happy to have spent time clericing for justice stevens. i'm going to talk a bit about -- about sort of constitutional method, i do constitutional haw -- and so this is something i think about a great deal, in in the 19789, justice scalia gave the holmes lecture at harvard law school. he titled the lecture, a rule of -- the rule of haw is a law of rules, some of you will be familiar with this lecture. in that lecture he posed what has become and i think what at the time was a fairly familiar dichotomy between the justices prummably like him who believed that -- that -- that judging in a constitutional democracy is all about judges reducing their own discretion by among other things -- applying a rule of general application in the cases before them. this is em fatly not doing no

pore than is necessary. . .

it is a constitutional shorthand. a justice of standard once the decision making in the background principles for policy situations. she notices that the distinction between constitutional law between categorical approaches versus balancing approaches is a version of the rules standard debates. like justice scalia, she she says the debate is about judicial discretion. mr. the people in this room and

much of the legal community think this case would have recognized justice stevens as a justice of standards rather than a justice of rule. professor sullivan made this point in the article which you referred to justice stevens as a justice scalia's's antagonist. his opinions are generally referred to. in both cases, he stated his often-stated views that the scrutiny we use in equal protection cases is not the strictly accurate. he is fond of saying that there is only one equal protection clause in the constitution. as he said in clayburn, our

cases have different responses to different classifications that range from scrutiny at one extreme to rational basis at the other. fax matter to justice stevens. the facts are very important. a single standard can be applied across a range of different factual context in order to further the underlying purpose of our constitutional or statutory text. the rules standard debate is a long standing debate, not just in constitutional law, but in jurisprudence. i do not expect to break any new ground here, but i do want to suggest that we take a fresher look at some of the assumptions underlying the debate, particularly in light of a couple of recent decisions by the court. the district of columbia versus heller in which the

decision by justice stevens figure prominently. the assumption is that balancing approaches -- one of the disadvantages of balancing approaches is that they leave a judge. it turns out that around much of the world this is not exactly how the court's view balancing approaches. this is not a point that will move justice scalia very much, but it turns out that a good many of the constitutional courts including be respected constitutional courts incorporate a balance into proportionality analysis. this includes the courts of canada, germany, india, israel, the european court of justice. proportionality analysis is a

formalized approach to balancing. most of the core sap practice it, proportionality analysis will come into a prima facia case. it is a test of legality. is the government pursuing a legitimate objective? the procedural practices is is the government pursuing a legitimate objective to the least restrictive means. have all reasonable alternatives being considered that do not infringe on rights in the same way? that is balancing in the strict sense. it is a more straightforward balancing of the governor objected. proportionality analysis is transacted did. it is not just apply to equality or liberty cases, it applies

across a range of areas. it is highly regimented. they do not consider the role plot to be a lot of rules, it is a lot of standards. there is such thing as a law standards. many courts around the world practice it. what does this have to do with justice stevens? let's think again about heller and mcdonald. we have two opinions. one says it is an individual rights decision. the other says it is up to the states and localities. we have two decisions in a span of three years by the supreme court's. it takes up hundreds of pages in the united states report. it was written by two justices that seemed to be more attracted to a jurisprudence of rules than eight years for its of

standards. remarkably, we still have no idea what the standard of review is for government action. we do note that the loss in the district of columbia, the handgun ban was unconstitutional -- we know that the court in heller and mcdonald rejects a balancing approach to the second amendment. we also noted that regulations for firearms in government buildings, schools, and those that touch on the commercial sale of guns and regulations that keep firearms out of the hands of the mentally ill or people who have been convicted of a criminal violation. this is hard to understand what a jurisprudence rule. the rule cannot be that all

regulations that touch upon the second amendment are invalid. the rule cannot be strict scrutiny or else many of the permissible regulations would not be permissible. the only rule that seems to make sense to me that links all of these things together is the rule of common sense -- a rule of the solomonic intuition. courts applying proportionality analysis would be comfortable with the notion that their rights have a core and a periphery. that is particularly when one is constructing a jurisprudence of private weapons possession, it is important and vital that governments had the flexibility to fashion a set of sensible common-sense legislation that can only be evaluated in context.

the dow light -- deep down inside, the majority in heller must have known that applying a categorical rule in the situation was not possible in a functioning, workable democracy. but i think they were too wet to the jurisprudence of rule to admit that. justice stevens, in his magnificent opinion in macdonald, recognize this feature of heller. he tried to pin the majority down, only recognizing the right to keep a bunch of no firearm in the home for local self-defense. i happen to believe and i hope that the political reality of gun rights will make it difficult for the court to hold otherwise in the long term. that is to say, i hope the final structure of the second amendment says that ball possession in the home, at least

for most people, is something that gets rigid scrutiny, but outside of that regulations touching on l -- touching on positioned outside the home or dealing with individuals who may not be able to conform their conduct to law, those regulations -- governments would get a fair amount of leeway. i believe that years from now when the second amendment has a that people who are looking back at devaluating heller and macdonald will see it as a narrower loss for justice stevens of the regulations, but a broader victory for his general approach of

adjudication of constitutional rights. it is something the court will need to engage in. >> thank you very much. i am restraining myself from asking a follow-up question to each of you. i am particularly restraining myself from here, because speaking of weapons possession i will talk about security cases. in particular, i will talk about another case. putting it into context, the understanding of the relationship between the court and the executive branch and how

to deal with the existed did -- deal with the executive branch's views. justice stevens had made a landmark constitutions -- lennar institutions. and they put it into a security context as i promised to. after justice stevens announced his decision to retire, i had several people who knew that i was involved in national security and terrorism and human rights issues come up to me. they wanted to know what it would mean if justice stevens left the court. he was the last remaining world war ii veteran on the court. how will this impact the courts of law? the first thing that kept coming to mind was my recollection of this joked that the justices told about how he decided to

enlist in the military the day before the japanese bombed pearl harbor. it was immediately clear that the enemy was intimidated by that because we had a responded. [laughter] that is his chair, not mine. i am not that we keep. justice stevens had an occasion to decide some of the national security cases on the court. among them was the 2004 case in which the court first recognized the jurisdiction of the federal courts to hear petitions for habeas corpus over guantanamo bay. it is the first guantanamo bay case that came to the court. it was the first majority opinion. two years later, homdon vs.

rumsfeld which invalidated military commissions without congressional legislation to authorize them. these cases reflect a particular kind of wisdom. these were john probably, but not only from his military service. i think it was a lifetime of attention to the persuasiveness of executive region. before i get back to that theme, let me do one more bit of history to put this in context. right after world war ii, justice stevens served as a law clerk to justice wiley rutledge at the supreme court who himself had struggled with some of the most profound questions of national security, individual rights, executive powers during world war ii. he was on the court when it placed the question at issue which was the curfew imposed on

japanese americans on the west coast of the united states. he was on the court, of course, for the case that involved the exclusion of the citizens from the same coastal zone. rutledge initially in these cases deferred to the executive s. president roosevelt had taken the position that this was necessary in the interest of national security. it seems clear if you read some of the later writing. in particular a good biography that was done of rutledge that justice stevens brought to my attention. rutledge circulate struggled with these decisions to vote with the majority in this cases when he made them.

he came to regret those decisions. by the time the court on which justice rutledge served face the reality -- face the legality of a military trial in world war ii, this case issued the year before justice stevens took up his work as a clerk at the court, rutledge rights and eloquent and vigorous defense from the majority opinion explaining that exigency is could arise, particularly where the procedure is available in the u.s. military trial which were grossly deficient as compared to standard procedural rights. this is particularly where the government poses a burden on individual rights. it is within the power of the course to check the reason for the response. in security matters.

fast forward 60 years and now justice john paul stevens is asked to evaluate the legality of u.s. military commission trials in guantanamo bay. the majority held that the president lacked the authority to establish military commissions without congressional authorization. what, to me in any case, was most remarkable about this decision is despite the fact that all of the casebooks still say that the course defer to the executive in wartime. next chapter. that court shows no discernible difference of any kind to the executive argument in that case and in particular the executive's argument that was admittedly sparse that military commission trials for these

particular defendants, accused terrorists, were necessary in the interest of national security broadly speaking. that posture may not be surprising. justice stevens especially in vote justice rutledge's's defense and one might imagine that some echo of the lessons of rutledge learned from those cases is there and able to be discerned. on the other hand, justice stevens is also the author of "chevron," the most famous opinion in administrative law which says broadly that the courts when a statute is ambiguous, the courts should defer to an executive agency opinion about what their statute means as long as it is essentially a reasonable. "chevron" has

been read. how can you have in the same justice, the author of "chevron," on the one hand, and "homdon" on the other hand. the executive is the view that is is insufficient. it is not given much discernible difference. here is my take, and justice stevens will later tell me why this is wrong, but here it is anyway. in these cases are quite consistent if one looks at them through the prism of what it is

about executive at views that the justice as understood as valuable. by the time chevron came down in executive views could eliminate statutory meaning when the executive has special expertise on a topic. when it is clear that the agencies under consideration of the matter -- in other words, if there was a good persuasive reason, we should attend to it along the lines of a set of factors that the court has recognized long ago. this language is visible in chevron, the case that changed everything. it was the lack of such detail and reason in the executive justification for pursuing

military commissions in guantanamo that troubled justice stevens. he wrote that nothing in the record demonstrates that it would be impracticable to apply court-martial roles in this case. the only reason offered in support of that determination is the danger from international ted -- international terrorism. as was apparent before and became even clearer after the fact, the civilian executives in crafting the initial military conditions that were formed at largely excluded from the design process of those commissions those lawyers in the military, particularly those in the judge advocate general, who were actually the resident government experts and how one might go about crafting a war times trial or military commissions trial. agency expertise means a lot,

but if you do not rely on it or attend to it or even try to explain, even in the national security context, what the reason is, then there is no reason for the court to defer to the expertise. expertise and record evidence, i think in justice stevens's explanation, where valuable indeed. there were four more of valuable -- therefore more valuable. -- they were far more valuable. we would turn to the professor -- >> i think it will work better with professor driver. >> i am proud to be here. my thanks go to the law review who are organizing this panel. i was fortunate enough to have a

close up view of justice stevens during my year-long part shipped at the supreme court. my vantage point was not quite as close as my colleagues and given that i did not clerk for justice stevens himself, but nevertheless, i walked away from that year with a sense of deep admiration for his work. the justice stevens that i saw all in october 2006, was distinct jurors provincially as the one he joined the court in 1975, more than three decades earlier. that should, i think, should not be taken as an incredibly controversial statement. over the course of a 30-year stretch, few people would remain constant over that entire time. but this is, i think, a prominent near to that exist. it has been embraced by journalists and academics. it suggests that justice stevens

jurisprudence during his tenure on the court was defined more by continuity than by change. this view suggests that stevens remained in the same place to allow time and was perceived to be a liberal towards the end of his career. the reason that perception exists, people claim, is because the court was around him. there is, i think, much truth to that. as justice stevens himself often says, each retiring member has been replaced by a more conservative justice with the possible exception of justice ginsberg and justice white. that strikes me as quite right. i do think it is also true, however, that justice stevens'

view became more liberal overtime. it is especially apparent regarding the legal world's most hotly contested issues. he is often referred to as a maverick and his views are sometimes described as quirky. again, there is a reason for this mission. it is my understanding that during his first time at the court he set a record for a first-year justice. this landed him the nickname "the lone ranger." i think it would be misleading to deny the fact that justice was in a quirkiness more conservative situation judicially. i do not want to play a game of jurisprudential got jet.

i am here to view the justice stevens' admiral career as a point of departure. -- admirable career as a point of departure. i come to praise judicial inconsistency. i am going to talk about three different areas -- criminal procedure, abortion, and affirmative action. three cases, all from the justice stevens' first full year at the court, 1976, come to mind. the first is a doyle vs. ohio, which raises if they piscatory story immediately after being arrested -- in other words, a criminal defendant is

on the stand. what was he in the wrong place at the wrong time. the prosecutor would say, "why did you not tell the story immediately?" the court thought that was a violation of due process. justice stevens wrote a dissent. i should say, of course, toward the end of his career as an active justice -- for much of his career as an active justice he was a leading figure in the fight against the steady erosion of miranda rights. earlier this year, he along with justice breyer dissented from the court's opinion on in florida vs. powell, which was a deviation from the miranda warnings. it made it unclear as to whether an accused could have a lawyer with them to out the entire interrogation rather than just before the interrogation.

that is the first case. the second case, south dakota vs offerman, was a 5-4 case. that case involved a fourth amendment case. it involved whether warrantless inventory searches and and how did automobiles were permissible. the court found yes in a 5-4 case. justice stevens joined in that opinion. of course, again, much like with miranda, justice stevens had for the overwhelmingly majority of his career played guardian for the fourth amendment. the other case is the united states vs. martinez which involved fixed checkpoints near the border with mexico.

pulling cars over -- it also raised the question of whether it was permissible to decide who was going to be detained for additional time if making such a determination based on mexican ancestry. that was fine. justice stevens joined that opinion. switching to abortion, 1976 --in -- planned parent hohood it involved a spousal consent and a parental consent provision for abortion. justice stephen split the ticket there. he voted to invalidate the spousal consent provision, but he did a poll the parental consent provision.

it is parental consent we are talking about, not parental notification. the court disagreed with justice stevens on that opinion. obviously justice stevens had long been an advocate -- i should not say an advocate. the final area, and this is a white crystal talk about at much greater length, is about affirmative action. shortly after joining the court , justice stevens belong to a group that considered -- and surely, it is not the first, the first case to reach a decision on affirmative action. there justice stevens, using a statutory, not a constitutional grounds, wrote for a for justice plurality which would have

invalidated and did -- it served to invalidate a medical school's admissions program that had 16 slots reserved for students of color. justice stevens felt very strongly about this. so strongly that he issued an oral dissent from the bench on this case. the words he spoke are part of the anti-classification, colorblind language. he says, "the university of california to its special admissions policy as good a student from participation in its program because of his race. he goes on to quote from an

idea that the constitution is color blind. that obviously stands in contrast to another case where justice stevens was there. a similar dichotomy plays itself out in a government contract in. justice stevens said the preference is based on characteristics. he also likened or at least compared the program to the nazi laws. it was sufficiently objectionable. justice stevens felt compelled to say that the program was invalid. there seems to be some tension between that case and, in my

estimation, the magnificent opinion in adderand construction vs. pena. the court seemed to embrace some of justice stevens's earlier opinions. he wrote in that opinion in a very powerful language about the idea that consistency as applied to racial consciousness is not always appropriate. sometimes consistency can be more misleading than eliminating. he says there, "we should reject the concept of consistency that would view the special preferences that the government has provided to native americans as 1834 as comparable to the

sufficient discrimination to african-americans do much of our history. the consistency the court espouses would disregard a no trespassing sign and a welcome mat. it would treat a senators decision to vote against keeping african-americans of the d.c. -- of the supreme court, as a positive factor. it would create a law that made by citizens ineligible for military service with a program for recruiting for black service. i should also say here that one of the areas where justice stevens has been criticized for changing his mind is one that he has actually been steadfast throughout. judge bork said that in recent years stevens had become an

active since -- had become an activist judge on such things as homosexual rights. his is an admirable record that stretches back quite a long wait. during his first term, there was a case that came to the court through direct appeal to the old three-judge panel, meaning that the court had to say something about it. justice stevens, along with justice marshall, where one of the few people who wanted to take up the question of whether an anti-sodomy statute was permissible. it is to his credit that he has been consistent. stepping back for a moment at least, i do want to talk about judicial consistency and say that justice stevens is far from being alone in emphasizing consistency. justice blackmun once told a reporter that he did not believe

that he was any more liberal than he was before. justice blackmun did, however, changes mind about the value of consistency. he changed his mind about having changed his mind. he said, "i expect when someone goes to the supreme court, his constitutional philosophy is not fully developed." judicial consistency is highly valued by judges and by legal commentators. there are some who believe that in order to be a great judge one must be consistent. there is a reason for this. one does not want to be regarded, judges no matter than anyone else, as being a physical or having been incompetent at their trade. there is reason to believe that every area of the law cannot be up for grabs, from the early days in law school, respect for stability in the law is incredibly valued. this is what we need.

it is a mistake to inflate n individual judges consistency with the consistency of legal doctrine as a whole. just because one judge should change his mind does not mean that the doctrine as a whole must follow suit. i do believe that the high value attached to a particular judges consistency is misplaced. the general move when charged with inconsistency is for justices to offer longer, sometimes torturous explanations for why seemingly irreconcilable conditions can be reconciled. every so often a justice will come to the conclusion they once thought x, and now they not think y, but they think anti- x. sometimes they just want to

explain the opinion and move on, often as a footnote. justice frankfurter said in 1949, "was done to altman never comes. it should not be rejected because it comes late." i think rather than attempting to reconcile the positions, it would be much better for a full- throated explanations as to what precisely the justice saul on the road to damascus. this may be a tall order knowing exactly what led one to make a decision, it is a very difficult thing to know with any certainty. i take gesturing towards a more full destination, there is nothing wrong with having changed one's mind. to the contrary, it seems to be a marker someone who continues to be engaged in the world.

even if a person has sat on the court of appeals for a substantial period of time, that vantage point is this thing for that of the supreme court. if the justice should arrive at the core and change his or her mind -- and not change his or her mind about a single issue, that would be disappointing. it would suggest that they have closed themselves off from what should be one of the prerequisites of the job -- continued, -- continued contemplation. we should look get an expression of it as more forward-looking rather than backward looking. that is, i will be consistent rather than i have been consistent. when justice said to his law clerks, "i am not devolving." nearly 20 years on, it seems

that justice thomas has kept his vile. -- kept his vow. [laughter] the thoughts and you views in light of changed circumstances is -- should be valued. the first thought is not always the best spot. despite judicial consistency, there may be some misconception about the reputation of cost that will accompany from a acknowledging -- from acknowledging a change of mind. it is only natural for justices to contemplate how they will be remembered. they may be wrong to think that it will hurt their judicial reputations. i think some of the most important opinions ball into the chandra of "amazing grace"

opinions. that is, i once was blind, but now i see. stevens help to hold a conviction for obscenity. he -- dow on obscenity and four years. eventually in 1973, he came to the conclusion that the court's quest was court's simply not going to work. there are other entrants in this can't. when things about justice blackmun and his opinion proclaiming that he would not tinker with the machinery of death.

i hope that justice stevens' opinion is it will be regarded as a new classic in the genre. eight justices willingness to change his mind should not be willing to -- should not be a mark against them, but in his favor. it is a cause for celebration. >> thank you very much. >> thank you and good morning. let me also thanked the students of the georgetown law journal for having put together this terrific conference and giving me the pleasure of a chance to appear here. i think law students and will reduce often do a better view -- always give a better job of organizing conferences than faculty members do. i think this is a case in point. it is a pleasure to be here. it is also a delight to see justice stevens again and talk

to all of you this morning. this is kind of a daunting assignment for two reasons, one of which debra mentioned in her remarks, which is in supposed to talk about justice stevens jurisprudence while -- justice stevens jurisprudence. there are a number of capable clerks writing about his jurisprudence these days. every time i had an idea about what to say, i started doing some background searching and tell that one of my fellow clerks had already said it and generally said it better than i was thinking of doing. i came to have some doubts whether it was possible to say something that was a novel, important, and the truth about the justice. [laughter] you could get any two out of three, but i am not sure i can succeed at getting three. i will try to put together

something about the topics. one of them, which was the subject of a paper, is about the transition in the justices jurisprudence from eight time, at least when i was looking for him, from maverick to the remarkable moment of his retirement when several articles refer to him as the "liberal lion of the court." one of the pleasures of growing older is that you find out how many things you thought were true and unchangeable about the world actually turn out to be faults and quite changeable. someone said to me 20 years ago, i think even 10 years ago that when justice stevens retires the headline will read "liberal land

of the court retires," i would say that is not the justice i know. i am grateful to professor driver and his paper parlaying out some of the cases that have led people to draw this conclusion. i think there are at least three explanations for the change. one of them that has been mentioned are the changes in the court around the justice. this is entirely accurate observation that the appointees to the court have all been, with one exception, have been conservative. the second is that the world has adapted to the change in the population of the justices or the jurisprudence of the justices. different cases are coming to the court.

realizing with the court was on abortion, for example, we do not see case is about political -- about parental notification or consent. part of this is that in some areas of justice stevens has come out by his own account, it changed his views about issues. the death penalty be the clearest example of this. as i recall, the last time i was on a panel, it was at a law school. justice stevens himself may some remarks about the importance of judges being willing to learn while the war on the court and to adapt to changes. for me the most interesting set of questions about this transition are the questions about affirmative action cases

where in the early years of his career, the first 15 or so, justice stevens often voted with the conservatives. in the past 20 years or so, justice stevens was regarded as a reliable vote on the liberal side. i think these cases are particularly important because i do not think you could possibly have imagined this prescription, accurate or inaccurate, from average to liberal lion, if those voting patterns have changed. i would submit to you, i will not put too much argument for it, that affirmative action along with abortion have been the two defining issues for the court of the last 25 years.

it is vividly their in the confirmation hearings of justice sotomayor your which share held sensitive these issues are dirty years after the decision -- the 30 plus years after the decision. what is the explanation for the change in affirmative action? justice stevens, i think, has maintained that his position or time has been consistent in this area and i agree. it is a doctrinal matters. it is consistent. he developed three careful distinctions that i think are overlooked, certainly by journalistic accounts of these cases. one is between 4-looking

affirmative action plans that aim at interaction -- the aim at integration, and backward looking remedial plans. the other is legislative power and municipal power. the third is between those cases in which the legislature had deliberated conscientiously and crafted a careful statute and those that seem to be nothing more than an unprincipled interest group deal. there is an echo of some things that were said earlier about justification and some things that were offered as policies. i agree that these positions, in my view and without disagreeing about the potential merits of inconsistency, but these distinctions do reconcile the holdings in the cases. i want to quote from another stevens' clerk, dan farber.

"all the the doctrine has been consistent over time, the rhetoric seems to be a little bit different in the recent cases than it was in the older cases." the best two examples of that board the -- the best two examples of that are a pair of cases. and wind, justice stevens said, "history teaches us that the cost associated with the sovereign grant of exclusive privileges often encompass more than high prices and shoddy or my ship -- shoddy workmanship. they engender animosity." he included a reference to the mobility clause of the constitution and the nuremberg laws.

koch's of legislation has a real cost in terms of the message it sends to society. hunt "i know of no workable constitutional principle, however, that can discern whether the message conveyed is a distressing endorsement of racial separatism or an inspiring call to integrate the political process." that seems to me to be a different conception of the kind of social meaning of race conscious legislation. it is not logically inconsistent, because the case does not involve a specific racial category. what accounts for the shift is a question i now want to ask. , justice stevensom

says that with respect to the constitutionality of affirmative action, we have learned that justification best on past sense may be different from those anticipated on future benefits." there may be an increasing embrace of this justification. i want to suggest in addition to the increasing decision of justification -- lawyers learned that it become to the court with an affirmative action policy, you better be progressing on perspective justification. in addition to that, i want to suggest one other source of change. if i have anything novelty's sake, i think it is right at this point. what i have said so far has been said by others. the suggestion i want to make

involves less change and, paradoxically, were changed. let's change because i think the seeds of the transition in justice stevens's a protective action jurisprudence were present in his remarkable descent in another case. we found quite a rich opinion. i recommend it to all of you and particularly to the students. it is an extraordinarily complex case by comparison with what we have seen today about affirmative action opinion. it is well known for some of the rhetoric that i quoted earlier about the risks of race conscious classification. i think people all and ignore is that there is equally strong rhetoric about the urgency of integration and racial equality in the opinion. dan farber in his comment on

this case points out the full on dissent from justice seasons -- justice stevens talks about reparations for slavery being dishonorable. it includes passages in justice stevens own name like the following one, "it is unfortunately but unquestionably true that racial premises -- racial prejudice persist and continues to obstruct participation in economic pursuits, including the construction industry." here is another one -- "we have accomplished much less than was anticipated. it is hard to imagine the urgent

and passionate calls for racial justice in the opinions we see today that are critical for affirmative action policy." i would characterize this as involving what i would call a kind of passionate ambivalence about affirmative action. on the one hand, it recognizes a real risk in race conscious classification, but at the same time recognize is real urgency in the quest for racial justice. that is the sense where the case holds the seeds. some of this was present there from the beginning. the more change i get is that it is almost impossible to imagine someone drafting a dissent quite like this one.

i think it would be logically possible to do so. i think the position was coherent in 1979. it is no less coherent in 2010. i think it makes less historical sense in today's circumstances. it makes less historical sense for two reasons. one reason is the depressing durability of racial inequality in the united states. it is much harder today if one shares the sense of urgency that justice stevens expressed in the case to believe that removing discrimination will suffice to eliminate substantial inequality. the second reason, and it is related, is that the justification behind affirmative action laws are much more deliberate did then the wind by justice stevens confronted and

criticized on the grounds that it was not collaborative -- was not delivered give in the case. -- was not deliberative in the case. people believe with ambivalence that affirmative action is necessary to address injustices in society. i think you can find pragmatic -- pragmatic ambivalence. that ito'connor said was ok to go aboard with affirmative action, but for not more than 25 years. bessie to be a pragmatic ambivalence. for the most part, it is a strong ideological divide. that is the way i would explain

this rhetorical change. shaw said, "i know of no workable constitutional principle, however, that can discern whether the message conveyed is a distressing endorsement to racial separatism or at an inspiring call to integrate the political process. in light of what we note today about the sad history of racial inequality in this country appear "i think there is a change year, when permitted by justice stevens's jurisprudence and his consideration of the deliberation that goes into policy that reflects a consciousness of the historical era that we are in. i am not the right person to

speak to whether or not that is the right explanation for these cases. the one thing i would say in closing, because i do have justice stevens in the audience, i hope that he talks about his jurisprudence over the next couple of years. you'll spend some time talking about these cases in particular. i think there is no more enduring problem in american constitutionalism than in racial equality and percent of cases important to point out the jurisprudence. >> we do have some time for questions, maybe a little bit less than i would like. if you have a question, with the exception of the justice, come to the microphone because it will be easiest to hear you there. justice, do you want to ask a question or let it go? let it go. ok. [laughter]

with the callers were arguing in favor or against a grant, we could always tell it was time to stop when justice stevens wanted to go. [laughter] i am will start the question. i am going to start what you are coming to the microphone and the shifting opinions on the court and when justice stevens's own views changed if they did whether one could ascribe that to a perception of one's own role on the shifting court. that is to say, as the court news to the right, which it clearly did of justice stevens tenure, and in the absence of clear voices like brennan and marshall on the left -- if there is a structural institutional

role for a justice to play. i do not know if either of you -- >> i will give a quick reaction. this is a delicate one to speculate about what the justice in the front row. i would not explain any of the decisions of the justice on that ground. it has always seemed to me that he has been exceptionally strong and has convictions about the idea at the justice -- justices ought to decide the case is based on their best adjustment about what the law is. -- best judgment about what the law is. i do not find it necessary to have recourse to an explanation like that and i do not find it persuasive. the one way i saw, at least as an external water, a sensitivity to roll is the signing power

where it was noticeable that in some landmark cases where the justice could have claimed a landmark opinion as his own. he judiciously as i did two other members of the majority in ways that were quite effective. >> thank you. let's take a question. >> all like to process for -- i would like to thank you for this conference. to what extent do you think international jurisprudence has favored the views of justice stevens? >> the main international jurisprudence -- do we think his views have been reflected in the views of other courts? >> more about how judgment of other courts and legal and political developments have

favored justice stevens is the view. -- justice stevens's deval. >> i think you certainly see in the jurisprudence of justice breyer and justice kennedy in particular, the influence of foreign ways of thinking. i just mentioned at the heller case. justice breyer's descent was very clearly influenced by the time he spent in europe and listening to european justices. i think the same is true of justice kennedy. anyone can look at the tax filings of the supreme court justices of the last several years until the justice stevens takes not as many trips abroad as some of the other [laughter] . i think he prefers to spend time in fort lauderdale.

i think it is along the lines of what someone else said. i think he is very keen to think about cases independently, to think about cases using his own judgment. that is not to say that he thinks for judgments are not worth -- or not relevant. he clearly believes that they are. i do not get the sense quite as much as some of the other justices that that is a very important influence on his thinking. >> one quick thought that question triggers in my mind, when the justice talks about his jurisprudence as conservative, the judges using the power of reason. it is a good idea wherever i can

fight it. i think that in its simplest terms is a testament to a judge that is not afraid to look to international decisions if they are persuasive and if they do they similar issue. you can take that into account while realizing this is the american constitution that he is expounding upon. it reminds me of the plain language debate and the insight. if we ignore legislative history, we are actually enlarging our power as justices rather than reducing it as the claim is made in the plain language approach. >> i would add on the international question, we have to distinguish between the justices on the unjust -- justices using comparative law.

from reliance on indication of international law -- that is multilateral treaties or a host of other indiana -- or a host of other treaties or international law instruments that the court has to confront rarely -- regularly. i would agree, i am not sure that justice stevens has been as vigorous as justice breyer or justice kennedy in invoking comparative law. this opinion was on my mind. i had to teach it last week. he does a remarkable job and one of the most detailed jobs in the modern supreme court case law. going into the detail of going into international law, the geneva conventions, the

associated commentaries -- and treating it as understanding it as a body of law as all. treaties ratified by the united states and understanding what is relevant about the commentary -- what one can discern from the text. in that respect, i think justice stevens has done a remarkable service in that regard. does anybody else what to say anything on that? ok. >> you all spend some time reflecting on justice stevens and looking backwards. i am thinking you had did in terms of looking forward about his legacy and how his jurisprudence will outlive his time on the court. more specifically, i was wondering if any members of the court may be responsive to

justice stevens's jurisprudence and opinions he may have issued. >> that is a great question. we'll make it the last one. let me invite my panelist to respond. >> do you want to go first? >> i am thinking about what i want to say. [laughter] i hope all of them are influenced by justice stevens is jurisprudence. i have always thought that one of the things people talk about when they talk about justice stevens's retirement is that he had such great until it's over all of the other justices. he is the liberal lion of the court. he strategically assigns cases to people. he does -- i never thought that

was the way in which justice stevens and his persuasive ability operated. i thought it was more like those who study administrative law. the power to persuade comes from the power of someone's reasoning. when i say consistency, i mean in the reasoning process that justice stevens goes through about part of the reason -- justice stevens -- justice stevens goes through. part of the reason he has been so successful is that -- i think he seems very prescient at times. there is a time when the law develops -- the right of privacy is a one -- is one that i have talked about a lot -- it is something he was talking about 20 years ago. there are echoes of that in some of the things where he comes out away from where he comes out today. i think, if nothing else, it is

an understanding of the judge's role as, not necessarily a flame thrower, not necessarily someone who has some consistent constitutional method that they apply all the time and his charismatic in that way, but simply someone who does their job in a restrained way, in a way that has respect for the president -- precedent and understands that the rule is for constitutional justice. i think combining the end goal of an vindicating the constitution with a certain amount of judicial restraint and ensuring that can be done over 35 years consistently is i think what his legacy will be. is a lineay -- there of justices in which i would put justice stevens that would include some of the clearest

examples, potter stewart, second justice harlan. david souter as well. i think they are justices who were profoundly influenced by the common-law method and had a certain idea of what it meant to be a judicial conservative, not on the liberal conservative spectrum, but with the way of approaching the law that was actually evokes by professor green's description -- greene's description of standards versus rules. one of the things 19 look of the court today is an absence of an obvious in your tour of that -- inheritor of that tradition. justice stevens has articulated over time these principles that will continue to influence the court. but it is a very polarized the

time and the appointments have been shaped by the abortion issue in particular. i'm not sure i see the justices who will clearly emulate the jurisprudence of justice stevens in a way that might have been more possible if there were identifiable justices in this kind of common law tradition. so, i hope that the justice who will do that will be a justice who we have yet to see appointed. and, although, we're sitting here in washington, d.c., right now, that might require a president who decides to appoint somebody without a washington connection, which none of the justices who i just described had before coming to the court. >> one way that i hope that justice stevens is influential is as a writer, as someone who takes judicial craft really seriously. he has written many memorable lines. when most folks think about who

the really great writers are on the court, they think about scalia and roberts. i think that stevens is very much in that class. we have heard about his lines. "welcome mat, no trespassing." i think about an opinion he wrote in "penh hearst -- in penn hearst. the first and last line of the opinion are the same. the opinion starts out, this case reveals the character of an institution. it was about a mental institution and he talks about the mental institution to the last line of the case -- this case reveals the character of an institution. it is clear that he is talking about the supreme court and what is talking -- what has happened to the doctrine. i think that, just about the only way that framing an opinion in that way happens, is

attributable to his writing the first draft, him during his own work. no loss circuit -- clerk, no matter how bold, to say, this case reveals the character of an institution. [laughter] i do think that writing matters a great deal -- the ability to turn of phrase. it is not something people think about when they think about who should be on the supreme court. justice o'connor's line "a state of war is not a blank check" has a very good way of shaping how we could -- shipping or we think about things. >> that is a terrific point and what you get from shakespeare fan. i love it. it is tremendous. i want to make one last closing comment. i cannot let the panel passed without saying that one of the things i think his clerks talk about most often with respect to justice stevens as a boss and as a judge on the court is his fundamental decency.

his decency as a human being, as a lawyer, as a justice -- it is remarkable. it is consistent with his attention to precedent and reason and the persuasive power of reason, but it is also remarkable and too rare as an antidote to the polarization we encounter more often in government. i want to thank him for that and hope that is among the pieces of the legacy of justice stevens. let me conclude with that and say we are now going to have a brief recess. i think 10 minutes. we will resume with the next very exciting panel that focuses on justice stevens and the court. please join me in thanking the panelists. [applause] [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2010]

>> my name is lizzie spavins and i want to thank everyone here for attending.

it is a pleasure to meet everyone in the audience. my parents are also here. it is a big even for everyone here and i am just so excited to see everyone. in addition, it is both the privilege and pleasure for me to present our next panel, moderated by professor pamela harris. introducing her at an event in honor of justice stevens is especially significant to me because it was one of the first things i ever learned about her -- she clerked for justice stevens. she introduced herself to my first-year criminal justice class and humbly mentioned that she had clerked for justice stevens and that, because of her fondness for the justice, we should be aware of any potential bias in her remarks. [laughter] i can say the same thing about professor harris because of my respect, admiration, and fondness for her. and the introduction i give could be biased. professor harris's tremendous

experience speaks for itself. a graduate of yale law school, professor harris served as a law clerk for justice john paul stevens. in addition, she was a law clerk for judge edwards of the d.c. circuit court of appeals. she then worked in the office of legal counsel at the department of justice and taught at the university of pennsylvania law school, specializing in constitutional criminal procedure and a lot of church and state. in addition, professor harris was a partner at law firm where she was a member of the supreme court and appellate practice, specializing in public interest litigation. professor harris was also a lecturer at the harvard law school. most recently, professor harris will serve as the executive director of the supreme court institute here at georgetown, will teach criminal justice and a new seminar workshop for students interested in oral advocacy.

her experiences at and former clerk -- as a former clerk make her the perfect person to moderate. she has been nothing short of instrumental in making this even reality. but for her tireless and enthusiastic support and help and her encouragement of ideas, this symposium would not have been possible. and so, i would just like to take a moment to thank professor harris for being here. -- for being the best professor and mentor and that a student could ask for. thank you. [applause] >> lizzie, thank you so much for that introduction. i have to bring it to my panelists that she is not introducing new. [laughter] it means a lot to me. i am delighted to be here at this event. i just want to thank lizzie and

the other students who did all the work in pulling this together. thank you to the justice for attending. i'm so pleased to see so many clerks. as promised, we're going to move away from the justice's jurisprudence and have a discussion about the justice's effect on the court, his role on the court, everything from what he was like to practice before to what kind of judge he was and how he may have seen his role as justice, to how his role on the court might have changed over time. we're so fortunate to have with this a remarkable group of panelists. some of the premier supreme court advocate practicing today, former clerks to the justice and other justices, among them -- i counted and i do not know how recently you have updated your web profiles, but among them, we have about 100 supreme court arguments, which is a remarkable number. i hope that the end of our discussion, we'll have time to

open the floor to questions so that we can all be part of the same conversation. because i cannot possibly match her introduction, i will introduce the panelists very briefly. i urge you to read their fall biographies. they are just -- there complete biographies. there are remarkable group. preeta bansal from omb. she worked in the white house and department of justice during the clinton administration. she served as solicitor general of the state of new york and was a partner at a law firm. she brings not only perspective as an appellate advocate, but also as a former clerk to justice stevens. paul clement is a partner of king and spalding and served as solicitor general from 2005 to 2008. before that, as acting solicitor general and principal deputy solicitor general. he has been a visiting professor here at georgetown.

when he returns, i urge all the students to sign up for his class as fast as you can. he has been a senior fellow at our supreme court institute. greg garre is a partner in an appellate practice group. he served as solicitor general during the last presidential administration and as principal deputy of that office. he was my colleague when the clerk at the supreme court. he was right next door, clerking for then-chief justice rehnquist. finally, sri srinivasan also served as a surge general's office and continues to appear before the supreme court. i had the pleasure of working with him for many years, so it is a special delight for me to be here with him and my other colleagues on the panel. we will start with one of the most public roles that justice stevens has played on the court -- his role at oral argument.

i think it is fair to say that, for supreme court practitioners, this is one place where justice stevens's absence may be felt especially keenly. i will ask the panelists to talk about what it was like to argue before the justice and how argument before the supreme court might be different without justice stevens they're asking his questions -- there asking his questions. >> i thought i would begin by trying to characterize at least one advocates perception of justice stevens at oral argument, in particular the character of his questioning of advocates, something that every advocate varies -- feels very keenly-interested in. there are three words that come to mind. the three words are humility, devastating, and kind. let me start with humility. the questions that justice stevens asked would often start with a preface that you would

get from no other member of the court -- things as simple as, may i ask a question. of course you can ask a question. you are a supreme court justice. you can do whatever you want. [laughter] even on one or two occasions i have seen in transcripts, may i ask what is probably a stupid question. i think it's a summer in the supreme court's guide for oral advocates that there is no such thing as a stupid question, just a stupid answer. there was no reason for the justice to be so humble in his approach to counsel, other than that is just who he is and how he conducts himself on and off the bench. but do not lead it fool you. let me get to no. 22 -- the devastating. you would think with his very kind of demeanor, what follows next would almost be a softball question, helpful to the advocate, and so it might have seemed. that is the trouble. when justice scalia asks you a question, even if it is

friendly, it seems like it must be a hard question because of the way he asked it. the opposite is true of justice stevens. the question is delivered in such a kind an unassuming manner that the advocate as conceded his case before he even realizes it. never for a second should an advocate before justice stevens have never thought that, just because the question was humble , it was not going to be extremely threatening to your entire case. the last thing i will say is, in terms of the kindness of justice stevens that was evident in this questioning -- it is the most remarkable thing to me. justice stevens had such a long and distinguished tenure on both the supreme court and court of appeals before that, yet he never seemed to forget what it was like to be a councillor arguing before the court. i remember one case in particular where i was

supporting a lawyer for the united states and it was his first argument before the supreme court. things were not going all that well. at 1 point, justice stevens, who ultimately voted against this lawyer and position of the united states, was trying to kind of ask the harder question down the road and tried to set it up with what was really just a very simple question. when the statute had been enacted by congress. the lawyer did as close an impression as a human being could do to a deer in headlights. it was clear to justice stevens that he had no idea. justice stevens, instead of justifiably being a little upset that a lawyer did not even know when the statute at issue was passed, simply said, well, it was a good, long time ago, was it not?

and then managed to get to the devastating question that followed. [laughter] that anecdote, to me, just shows that the justice -- he had a job to do. he asked to the follow-up question, which was not helpful to the case, but he did so in a way that was very kind and very understanding that the lawyers are people, too. sometimes, it seems like judges can occasionally lose sight of that fact, but justice stevens never did. >> sri? >> pam, thanks. let me start out by saying thanks to georgetown for putting this event together. it is a terrific celebration of a remarkable career of public service, not only to the court, but to the country. i'm really honored to be here in the justice's presence and the presence of these great panelists. thank you for leaving my name out of that. [laughter]

i appreciate that a great deal. [laughter] arguing in front of the court is a tremendous privilege, especially in front of justice stevens. i will give a couple of anecdotes, but i want to start out by placing it in historical perspective. the justice had a long and distinguished career on the court. one thing that is interesting is to think about the way that arguments are now on the way they were at the time that justice stevens came on to the court in 1975. i look at transcripts from those days and compared them to the transcript did today -- transcript of today. you can look at the transcripts and see who asked questions and when and of what nature. justice stevens tended to ask questions, devastating blow they were, later on in the argument and probably fewer in number than some other justices.

if you look at when he first came on to the court, there might be a clue as to why that might be the case. it was a remarkable turn -- term. it had the death penalty cases which raised the questions of whether it can be constitutionally imposed, if so, and what sort of a statutory scheme. it was in the wake of roe versus wade. i listened to those recordings. one thing that is especially remarkable, if you look at two of the capital cases from that term, the number of questions before the first question was asked of the advocates -- there was nine minutes in one. in another, there was one question in the first 10 minutes. in the next, there was 10 minutes before the first question. i am not saying that is typical. i did not do any system that --

any systematic analysis, but you would not see that phenomenon today. if you look at capital and abortion cases later on, there is one prominent case from a couple of terms ago. in that case, there's a point -- there is a fantastic petitioner who got 32 seconds before the first question came. the abortion case i looked at was argued by the solicitor general paul clement and he got a whopping 60 seconds. things have changed quite a bit. it might be that the questioning pattern -- it might be a message of the days from when he first ascended to the court. in terms of the kinds of questions that the justice past, i went and pulled out a transcript from one of my -- that the justice asked, i went

and pulled out a transcript from one of my experiences. you can see how uncomfortable one could be. by way of prefatory remarks, he seemed too often ask questions later on in the argument and they were not necessarily great in the number, but they were devastating in the fact. when you ask a question about how many questions the justice asked, it is hard to pin that down. does the following account -- may i ask a question? we decided probably not, because it should have more than one viable answer. [laughter] the snippet i will read and then i will stop is from a case called zuni public school district. it is about a complicated statutory interpretation question. it broke down -- we were not in this camp on behalf of the government. most people seemed to think we

have a tough argument on the tests of the statute and that we had a pretty favorable argument in terms of the purpose. you have a classic dichotomy between the text pointing in one direction and purpose and legislative history point in the other direction. what are you supposed to do as the council? you want to try to avoid that. leave it to justice stevens to not allow that kind of indulgence. here is the exchange. "may i ask a question? a rather basic question? your opponents reading is the only fair reading of the statute, but i am also convinced that is not what congress intended. what should i do?" "laughter" -- i think at my expense. [laughter] i would not put this at the

height of advocacy. one way or another, i think you should rule in our favor. [laughter] "laughter" -- i think it should say "lame." justice stevens as, "except my premise. what do you think i should do?" you could have a sliding scale approach. it does bird on that. justice stevens says -- does verge on that." justice stevens says, " assuming there are two readings ." "may come to that result, even though the language it says exactly what your opponent says that it says?" it is a dilemma. you always want to answer in a way that is likely to gain your vote, but also in a way that is likely not to cost to someone

else's both. it could pose a real dilemma. what i said was, "if the language is absolutely unambiguous and compelled that reading, i think it would be a difficult position." the chief justice said, i would have thought your office answered that. justice scalia says, you still have the church of the holy trinity somewhere, don't you? it was an old case that basically into the proposition that you could give effect to legislative purpose over legislative text. he was an advocate in the very horns of the dilemma. i do not think anybody did that as this -- as deliciously as justice stevens. [laughter] >> greg? >> thank you for having us here. it is a great privilege to be here, especially with the justice here today.

i think they have captured, wonderfully, what justice stevens is like at oral argument. i want to return to one of the first points that sir made. it is really -- that sri made. it is really important. in the current court, it often seems as if the justices are racing to get the first question asked at oral argument. was very rare that justice stevens had the first question to ask at oral argument. it was much more likely that he would hang back and perhaps see what his colleagues were thinking. it would be near the end of the oral argument that he would actually ask a question. oftentimes, it would be the question that defined the rest of the oral argument. i used to think of it, from an advocate's perspective, of the old show "columbo." you would get to the end of the argument and feel like things were going pretty well.

you would see the yellow light. you would think, things are going well. justice stevens would say, i have one question. may i ask a question? it would be the question where your case could unravel. he was tremendously effective at that. if you look at the oral argument transcripts at the supreme court, my guess is that you would see justice stevens's name more than any other justice's name where another justice followed up, say justice i want to know" the answer to justice stevens's question" which i think is a real indication of how effective he was. he was also unpredictable in his questions. we might all have a sense of where justice stevens was at the court, although he would often times surprises, but at oral argument, his questions were often very unpredictable.

during the course of one oral argument, he asked me what the meaning of the word "dung" was. it was an argument over the fcc 's fleeting expletive policy, so it was not out of the blue, but it was one of the questions that ought to the outer limits of the government's position and asked it in a very interesting way. i think he also really perfected the art of asking questions from a perspective that you would not have guessed. as an advocate, you are thinking, ok, justice scalia is asking me this question. he will come on this perspective. someone from a different perspective is going to ask it this way. you sort of know which end is up and wear your case fits -- where your case fits. what can be really devastating for an advocate is one of justice asks a question from a perspective that surprises you. for example, in one case that i

had, over the scope of habeas jurisdiction with concern over americans held by force overseas. the debate was about the extent to which habeas extended overseas. one of his cases had been about the scope of the writ. it was during my oral argument, during my rebuttal, the justice stevens suggested the government had not gone far enough in arguing that habeas jurisdiction did not extend overseas. he asked me, is not iraq a war zone? i am thinking, it is, but where is the question going? he suggested that the government had not gone far enough. as an advocate, you are thinking, what am i missing? as justice stevens -- his

questions could be so devastating. it seems so simple to give the answer and it seemed to make perfect sense, but you never knew where the other shoe was going to drop and how your case was going to fall apart. [laughter] the last thing i would say to emphasize a point that paul made and convey my thanks -- the politeness and respect that justice stevens showed for it advocates, no matter if he was with your side or what your position, he was always immensely respectful. it was greatly appreciated from this advocate's perspective. >> preeta? >> i would emphasize a couple of things. i agree with everything they have said. when he was not asking questions, his demeanor on the court when he was listening. one of the things i feel

strongly about with justice stevens -- his amazing ability to be a listener and to be very strategic and shape the court threw biding his time -- throughy biding -- through biding his time and choosing the moment for his point. he was above all a judge who came from a lawyer's background as opposed to a lawyer's background. he cared a lot about the facts, the practical impact of the case, whether it was on an industry or a particular, practical environment in which the legal rule operated. he counted a lot on the lawyer to present his case. i have never spoken to justice stevens specifically about this, but my sense was always that justice stevens had his -- if he had his way, he would just as soon go back to the era where the advocates could have 10 or 12 minutes to present and he

could really hear that things of the concerns -- the things concerning the world at large. sometimes, i had the feeling that the colleagues on the court -- when the question and the answer colloquy were not there, they would be thinking of their next question. they would be listening, but thinking of the next question and what was on their mind. i always felt, watching justice stevens, that he was really listening to the advocate and listening to his colleagues, too. he would then come in at the end with that devastating, sympathizing -- synthesizing question to sum up the witnesses -- weaknesses. there are a couple of cases that come to mind. there was the case argued by the person who was challenging

the pledge of allegiance in california. he considered himself an atheist and was taunting on behalf of his daughter the fact that she had to recite -- challenging on behalf of his daughter the fact that she had to recite the pledge. he was very passionate, and i do not mean that in a bad way. he had a very strong sense of where he stood with relation to this question and was very effective at conveying his passion. i remember watching the lawyer talking about this and the other thinkes, i thin, ---- i they felt like it was nice that he was telling his perspective on how his daughter felt, but i really had the sense of justice stevens listening, watching, and being compelled by the manner in which he framed his concerns. i think that ability to listen was very profound in justice stevens. there was the case involving

pre-emption of state law class actions. the lawyers there -- the merrill lynch lawyer presented a strong case about the practical impact of class actions in terms of the industry, the economic impact. it was not tied to the particular statutory interpretation argument. there was a lot of colloquy about that. there was a point at which the practical impact of this on the industry was talked about. again, looking up, i felt that it was justice stevens who was really focused on this and the impact. his background as a lawyer, as a business lawyer, his concern for the facts, his concern for the impact -- it all had a big role in how he listened to advocates. the sense of hanging back, having a sense of timing, waiting to make his mark in the arguments, the active listening that he did with respect to oral arguments -- those really affected the way in which he ultimately approached cases.

>> i cannot resist adding a few words. i do think that justice stevens was one of the best listeners on the court. i do not think this is unrelated to all the things we're saying. it was what allowed him to ask those really devastating questions, because he remembered everything that had been said. i sat down and read an oral argument transcript with my class a couple of weeks ago. it was the case about the strip search of the 13-year-old girl. justice stevens asked the single-most devastating question at that argument. the lawyer for the school got up. in the course of his argument, the lawyer for the school said, we know they are reliable, because they are able to be disciplined if they are not. everybody else was thinking about their next question. justice stevens interjected and

said, really? how was the girl disciplined? the lawyer said, she was not disciplined at all. [laughter] it does not happen unless you are listening. there is an important connection between listening and the nature of the questions. the only other minor thing i want to say is that justice stevens was remarkably polite from the bench. i totally agree with what has been said. i think it was not just a matter of saying, may i, and try not to interrupt too much, but it was polite in a very substantive way. he asked real questions. sometimes it is hard to figure out what counts as a question and what does not. a lot of the things that have come out of his mouth at oral argument are not real questions. you're talking to your colleagues, trying to force them into making concessions, but they are not questions. they do not invite the council

to be a real and respected part of the process. justice stevens's politeness was very substantive and it made council part of the process. acted as though he thought he might learn something -- he acted as though he thought he might learn something from what they said and that is the deepest respect you can give a lawyer. i think that is one of the reasons it is such a pleasure to argue before the justice. i only did so once and he did not ask me any questions, but even so, it was a rare pleasure. preeta, some of the things you were saying about the kinds of questions that justice stevens would ask almost test to a second point about what kind of judge -- take us to a second point about what kind of judge he was and how he saw his role as a justice. prof. greene talked about this earlier from the lens of his opinions and jurisprudence.

now we can try to address the question from a different perspective as advocate and former clerks. >> the first that -- the first word that comes out of our mouth when we describe justice stevens is humility, both as a boss in chambers. if you were a gas station attendant, he would be a great boss. he is a great guy. as a judge, the humility -- it is what i think of when i think of him first -- it is the first thing i think of when i think of him. he had a sense of humility and obligation and responsibility about the unique role of judges in our system. i often said that it is kind of like -- i sense that his approach was kind of like a blind man feeling the elephant. there is this reality out there that must be divined and pronounced upon.

i think he understood you could only grasp one piece of the broad reality, not pretend to say what the shape of the elephant is based on one thing before you. that is ultimately what made him -- i think that is what made him the ultimate common law judge. you feel the trunk and you describe what it is, not pretend to describe what the elephant is. you take one case at the time. judges are human. they are endowed with incredible power and he was very conscious of the role of power that was presented before them. he was also humble in the face of it. do your job. do your job well. you do not shrink from it. you do not pretend to go further from the immediate question before you. his humility as a human being and a profound sense in which pan talked about it -- a genuine respect for what he does not know and what others do, the fact that no one person can know

it all -- it contributed to a case-by-case approach to the law. he did not believe in the bright lines, necessarily. we're not legislators, i think. we did not announce in advance the rules by which people should guide their affairs. it was something which, retrospectively, you try to come up with the rules in respect to that particular matter. >> the rest of our panel has. before justice stevens as advocates -- has appeared before justice stevens as advocates and have felt like his questions were unexpected. how did you feel in preparing for those appearances? how did you feel about preparing for his methodology and how you would present the case? >> one thing that unites almost everybody on this panel is that we were advocates before justice

stevens after we had already been -- he had already been on the bench for good 20, 25 years. so, we had an advantage, of course, which was this enormous body of jurisprudence that the justice contributed to. it was particularly revealing of what justice stevens thought about issues, because justice stevens was so willing, despite that it is a mini contradiction, although explainable, a great humility, and there was no hesitation, if he disagreed with his colleagues, even all eight of them, to write a separate opinion, a concurrence, a dissent. in earlier years of his career on the bench, there were a lot of times where he would write separately to express his own views. i guess how i tried to approach it as an advocate was, in all of the cases i was arguing, was to

try to take a step back and not look at the issue from a doctrinal perspective but from how the individual justice would approach the issue. in that context, arguing before justice stevens relatively later in his judicial career was a great advantage because there was a great body of opinions. even so, he would often surprised you. i sympathize with those who were arguing in front of justice stevens in his first couple years on the court. he would surprise you. i cannot imagine how one would have tried to prepare for the argument in those early years. >> this is consistent with what preeta said about him being a common-law judge. in many respects, he approached cases from a practical perspective. you would want to think about the case very carefully from a practical perspective, because

he would often ask questions about the key doctrinal issues and then about practical issues as to how this would work out. i think he also saw this -- you could also see this in his opinions in ways that would sometimes surprise you. in -- being the oldest justice on the court, i think his practical perspective on things often reflected in a more useful perspective. for simple, i argued one case involving -- for example, i argued one case involving a police chase and when police could use deadly force in relation to that. much of the reaction was to the videotape shot from the squad car of the suspect fleeing from the -- fleeing at high speeds. the justice's opinion suggested -- the justices' opinions

suggested they were horrified. justice stevens was the only dissenter. "at my colleagues learned to drive when most high-speed driving to a place on two-speed road rather than on highways when split-second judgments about the risk of passing a slowpoke in the face of oncoming traffic or routine, they might well have reacted to the videotape more dispassionately." [laughter] it would surprise you to hear that the more elder member had this perspective on drying -- driving. in another descent -- dissent about the profound meaning of the f word, he wrote, "as any golfer who has watched his partner shank a short approach knows, it would be utterly ridiculous to think that it described anything sexual or

indecent." [laughter] sort of related to that, too, was this incredibly rich perspective that justice stevens perce by -- provided to the court into the country, because he had lived so much of the nation's history. he saw the cubs in a world series game. it is hard to believe. he lived through prohibition and referred to it in some of his decisions. it was that practical perspective that provided a real service to the court. >> i would say a couple of things. on the practical side, one thing that struck me is the number of times that justice stevens would ask a truly empirical question. i saw this in the -- one of the transcript i was perusing -- transcripts i was breezing. he asked about the number of

convictions resulting from rape and murder cases. it reminded me of an argument about an agency adopting a regulation that had some preemptive force to it. the question i got was, if you have that view of the agency's role and that is what the agency thinks it's was -- thinks it was doing, then how many regular sit -- how many regulators did the agency had so they could take on this role? it was a practical question, to which i did not know the answer. [laughter] i would also say there is a dichotomy between rules and standards in away. one thing you always thought about in preparing for an argument before the court is that some justices are likely to think there is an all or nothing proposition on one side of the case while other justices, justice stevens included, are going to look for particular fax

and conceptual considerations that tipped the balance -- facts and conceptual considerations that tips the balance -- tip the balance. there were more narrow and case- seismic considerations you might want to have for justice stevens -- case-specific considerations you might want to have for justice stevens. there was a case between shady grove and allstate. it had to do with the class actions. there were a group of justices that thought it could happen quite often and another group that bought no. justice stevens was right in the middle at "sometimes." it is not an all or nothing proposition. there is also discussion about the word "proceeds." some people said it meant

profit. another group said that it meant gross receipts. justice stevens said that it could sometimes mean gross receipts and could sometimes mean profit, depending on the particular consideration. that was the kind of individual consideration that could tip the balance in one direction or another. you always had to have that in mind when you're arguing before him. >> i think the attention the fact that you see at oral argument and in the opinions -- it was something we saw a lot of in chambers. it was quite a revelation to me. in law school, studying legal principles, it is all about the law -- constitutional law is so exciting. someone might mention that the facts really matter, but you don't really believe it. when you get to justice stevens's chambers, he is famous for writing his own opinions. a lot of the effort went into the fact section of those

opinions. you could really see that, for the justice, it was writing the facts, that part of the opinion, that really helped him focus his mind and sort of guide the rest of the decision. it was all about the facts. it was very vivid in the amount of time and attention he spent on that part of his opinions. there's a sense of the way in which he ran his chambers, which reflected a lot about how he saw his role as judge and justice. do you have other thoughts about the way -- the way the justice 's procedures as a justice reflected how he saw his role? >> definitely the way in which he wrote the opinions. i recall him saying, if you really focus on the facts, the law sometimes writes itself. the law would very much emerge from the facts.

that was a huge part of it. when i was working, the last year the justice marshall was on the court, there were two justices that did not part is a bit. everybody else was in that -- that did not participate. everybody else was participating in that. he considered it extremely important to have individual checks. he was comfortable with the existence of that pool, as long as there were other checks. we got an incredible sense of the lay of federal law in his chambers. once last third of all the additions came through in a year -- 1/3 of the petitions came through in a year. you cannot always write memos and the rest of your work, but we had this no memo arrangement.

if you thought it was not even a question, he would write "nm." if there was a close question that might be a circuit conflict, we would write the memo and explain why it might come close. i think that, again, his sense of the importance of individual judges, the sense of responsibility he felt in making sure his chamber reviewed every single case and did not submit to the generalized group thing, i think that was a very big part of the way he approached the job. >> paul alluded to the justice's habit of being willing to write so opinions, concurrencees os or dissents. i totally agree that that is not

inconsistent with the overall humility he brought to the role. i was wondering whether any of you had any view of the significance of those separate opinions and what kind of role they played on the court. sri? >> one thing that was interesting to me on that issue is, if you look at the wrong numbers, courtesy of the numbers place for the supreme court practitioners, -- the raw numbers show the number of slow he hasents show that roughly the same number as the rest of the court combined. if you look at the cases in which there was a slow descent -- solo dissent from justice stevens, i do not think they're necessarily bellwether, high- profile cases, it shows the care he showed.

there was an environmental case where he was the lone dissenter. these are not one or two to paragraphs of dissent where there is a bit of a disagreement with the majority and there are eight justices on the other side. let's call it a day after one or two paragraphs. these are very meaty dissents. there are three that i can think of from last year. the dissenting opinion was in the main as lengthy as the majority opinion of the other eight. it shows his care and commitment to the cases that were not always the most -- those on the front-page news, so to speak. one thing that is worth noting is the extent to which knowledge on the part of the majority that there is going to be a dissent shapes the majority opinion. i do not know the answer, but i

can see that if you are in the majority and you know there is going to be dissent, you might structure the majority opinion differently than if you thought you had carte blanche, particularly if it is going to beat a meaty dissent -- be a meaty dissent like justice stevens might write. >> i think that is one way in which you can reconcile the willingness to write alone with the humility. justice stevens, in those separate writings, did a great service for the rest of the court. i always suspected that maybe the opinions written by the court that are most likely to have some kind of erroneous reasoning in them are the unanimous opinions, because there was nobody disciplining the writer of the majority opinion. there is a way in which writing that separates dissent is a great service -- separate

dissent is a great service. i think that i can say from personal experience, as somebody who wrote memos for the circle -- for the pool, that you wrote a better memo knowing that the stevens case -- the stevens' i think in a case where you were not really sure, or it might have been, but you are really sure that it was not worthy of cert, if there was nobody outside of the pool, it would've been easy to male lead in. but knowing that justice stevens was not in the poll, when i was on the court, he was the only one not in the pool and it had the same disciplining effect. it would be a mistake, though,

to think the separate writings were just these quirky views that sat on a shelf and had no continuing effect. this was brought home to me more clearly than in any other circumstance when i was getting ready to argue the united states against booker case about the effect of a line of cases on the federal sentencing guidelines. in preparing for that argument, i came across a dissent that justice stevens had written, from a pure opinion of the court. it was the net is states against watts. the question was whether it was permissible under the guidelines. it was not a constitutional question, it was a question under the guidelines if it was permissible to use conduct for which the dependent -- the defendant had been acquitted to increase the sentence. eight justices thought this issue was so simple that it was

appropriate to discharge it in the opinion, in justice stevens wrote a dissent which not only was remarkable in the fact he took time out to write it, but when i read it i realize that three or four years before the other case, every single aspect was sitting there in that lone dissent for the justice. i will tell an anecdote, i was so taken by that, at some point during the oral argument in poker, i tried to use the fact that eight justices rejected this, to which justice stevens interjected, "that just shows they don't listen to me enough." what is remarkable, i have to think, justice stevens knows the answer to this, i don't, but i have to think if you are a justice, it has to be incredibly satisfying to have your solo

opinion become the majority opinion of the court, especially in such a consequential area of the law, and never have the sense that justice stevens viewed the cases as his special cases or something that he owned perry -- owned. he shared those opinions. it was probably, as with many of the things with justice stevens, i think it was not only humble but it was pretty darn prudent. now that he is no longer there to lead the courts on these issues, it probably helps that he shared the mantle of the cases with other justices who are still up there and still feel less strongly about those line of cases as justice stevens did from the get go. >> i think all of these traits fit together. you have the sense of she ability.

i think it is a separate riding and participation, i never had the sense he viewed himself as someone trying to command a court majority. but at the same token, he was very strategic in the sense that i think he assumed at some point the court majority would form by the power of the idea. if he did not have the sense of separate writings as being quirky, i have the sense that it was a strategic, sitting back, letting the court evolve, having a long view of the subject matter. eventually, and a lot of areas, the court camera around and embrace his view. i think it was a sense of humility. he is one person, there are eight strong colleagues. he will not try to win it every time, but the fate and the capacity of reason and eventually things would come around.

>> the first panel talk and little about continuity against other items and there has been a lot of talk about whether justice stevens' role on the court changed over time. i think the short form press account is he went from someone who was almost practically eccentric, wrote these little opinions, did not care much about strategic considerations, building the court, and then ended up almost unexpectedly as a real leader of the more liberal justices on the corurt. i have always thought -- obviously, there were changes of court personnel, and those changes affected justice stevens' role. but i have always thought there was much more continuity than change. from the very beginning, justice

stevens had a long view. he took care, he thought strategically. he was not writing these opinions just for fun, and not even that of the comet and to get things right, although that is part of it. in the end, you move people through the power of your ideas. i have always thought that the justice that i clerk for back in 1993, it does not surprise me at all the flash forward 15, 20 years, he is playing this kind of leadership role in the court. >> just a follow-up, justice stevens was not always in the dissent. he was with the majority decision in many important cases. one of the things that he did so

effectively was the decision of to whom to assign the opinion when he was the senior justice and have that the signing authority. i think you take for granted that when you have five votes after conference it does not really matter who writes, by think oftentimes it does matter in terms of what the decision says and oftentimes in terms of whether you hold together five of those. justice stevens seemed to be particularly effective in making that assignment decision. i think this is another area where it shows his humility. you would expect as senior justice, one of the fun things to do is write the most important cases, but oftentimes he decided to assign the decision to other justices. >> we still have a few minutes. if there are questions from the audience, we would love to hear from you.

>> i would like to ask the members of the panel, to what extent do they believe oral advocacy affects the outcome of the case? second, i would like to ask those members of the panel who are clerks to the justice which of his predecessors on the court during the 20th century do they feel he had an especially high regard for and why. >> who would like to talk? >> the person that we would really like to hear from as to what effect oral argument really had is sitting right there. it seems may be foolhardy to speculate, but i guess i would say two things. one, it may have mattered more to justice stevens than some of the others on the court. i had a feeling even in cases

where i would go back 20 years of jurisprudence and think he is on to be a tough vote to get that he had an open mind about the cases, and i think it is also true that there are cases that his vote ended up surprising a lot of people. the case i argued if years ago involving the voter id law in indiana. justice stevens was in the six- justice group of justices that produced two opinions, and he was clearly in the camp that wrote very narrowly to what the project to let the law go forward and concluded there was enough basis in the record to let the law -- to strike the law down. judging by the press coverage, i think that was a position that surprised a number of people. for justice stevens, it made a difference. i have often thought that question gets asked from an

artificial perspective, because you think the lousy as the case and the world, can the advocate pulled one rabbit at of their hat after another to turn around case? i think in the supreme court, the key is to write a brief that get you to the point where oral argument might make a difference for your client. i certainly think my sense of the court, though i would prefer to hear from justice stevens, is that is the name of the game, to write a good enough. the kitchen to the point where the oral argument makes the difference. >> we tend to think of oral argument from the advocate's perspective, but another fundamentally and portent and maybe more important aspect of oral argument is often times it is the first time the justices get a sense of what each other is thinking. oftentimes, they are moving each other with their questions, and because justice stevens

questions could be so effective, just by asking them he could move his colleagues even if advocates were not moving them. >> an argument can expose of fishers -- fissures. i would gather, having not been on the other side, they come to the bench with some predilection of where they're headed and maybe in some cases stronger than others, but there is a way that argument can exposed cracks in a position in it with a briefing does not. to me, that is kind of the real ultimate purpose of oral argument. the other aspect of the question, from the perspective of people who have clerk for him, i cannot speak to that.

i will say the rejection letter was exceptionally courteous. [laughter] >> it is hard to answer that question about which justice influence him the most. is theious answer justice that he clerked for, which was justice rutledge. i don't think of justice stevens as thinking about some of its impact on the long-term of jurisprudential development. again, just a very careful judges who spoke case by case and let the laws emerge from that, and i think justice rutledge was the model of that, focusing on every case and let the results emerge naturally. >> ok, this is really exciting

for me. i am a first-year student here. we just read about the case. my question is mostly for you. just out of curiosity, i don't want to put words into your mouth, i got the sense he disagreed, so if you are preparing to argue the case and you know there is disagreement, how would you prepare for that, knowing justice stevens' ruling the court? would that be different from knowing how you prepare if you knew the other justice -- would you prepared differently knowing he is the one who disagreed relative to may be other justices on the court who might disagree? >> i think you approach the argument with more fear because

she no justice stevens may be coming at you. it is a case that you looked at carefully. you would expect to have very practical questions about how it would work under the rules of federal civil procedure, but that argument is another example of justice stephen saying something surprising. i remember during the course of my argument, he said we would win under bell atlantic. you think, really? that is good. you approach it from a different perspective. >> ok, i think we're finishing on schedule. i hope that you'll join me in thanking our panelists for their time. [applause] [captions copyright national cable satellite corp. 2010] [captioning performed by national captioning institute]

>> find your seats and we will get started. >> hi. i am the senior programs and development at her for the georgetown law journal. thank you to our wonderful panelists. i want to take this opportunity to welcome our next speaker, the william treanor, to georgetown law. he has already made a big impression on campus.

from giving more support to students struggling through the job hunting process, to his hands on development with students, to sponsoring all you can eat cupcake day in the lobby. i can report that the student body is thrilled to have him. in addition, his support and enthusiasm for this event has allowed it to become reality. he comes to us from fordham law, where he joined the faculty in 1991 and began serving as dean in 2002. he is certainly no stranger to washington. he has served as deputy assistant attorney general and the office of legal counsel, in the office of independent counsel during the iran-contra investigation, and in the office of u.s. attorney for the district of columbia. his legal scholarship has focused on constitutional issues and the war powers doctrine, and a minute domain. while at fordham, he

participated in the first-ever conference focused on the jurisprudence of justice stevens. dean treanor, welcome to georgetown. >> thank you. [applause] thank you. that was a wonderful introduction. i had not thought about it as an all you can eat cupcake event, but i guess that is fair. it is a privilege to be here today and be part of the celebration of one of the great judicial careers in the nation's history. justice stevens, we are so honored that you are here today, so honored we have this occasion to look back on your tenure on the court. thank you very much. i want to thank all of our participants. this is an extraordinary program. the first panel of academics, second panel of practitioners were absolutely remarkable.

i want to thank everybody who came here, and i want to recognize pam harris, who was the moderator on the last panel. pam is the executive director of our supreme court institute, and this is actually her last day at georgetown. she is going to the department of justice on monday. i would just like a round of applause for pam harris. [applause] in a moment, you'll be hearing from the acting solicitor general, but before i introduce the acting solicitor general, i want to talk a little bit about justice stevens' contribution, specifically his contribution to the rule old law. -- to the rule of law. my framework on this is shaped

by the fordham conference that we just heard described, which was five years ago. it was a celebration of the centennial, and justice stevens said there has never been at a symposium on his legacy. we should use the occasion of the centennial to bring together many of his former clerks in academia to talk about his legacy. we were absolutely delighted when justice stevens accept it. and then shortly before the symposium took place, i was sitting at my desk and i got a phone call. it was from a person who was the president of ford's council. president ford, as you heard earlier, nominated justice stevens for the court. mr. becker said that president

ford found out about symposium and i should expect a letter from president ford. a couple days later, i received the letter. i presented it at the symposium. it was actually a very emotional experience. i know that justice stevens was very touched to receive it, and hung it on the wall of his supreme court chambers. and everyone there, everyone who was part of that, really treasures the memory of that occasion. the letter starts out, " historians studied the significance of legislative and economic events that occurred during a presidential term to evaluate the presidency. normally, little or no consideration is given to the long-term effects of the president's supreme court nominees.

some come to mind, and although references to these great jurists are usually absent and presidential biographies. president ford continues, let not this be the case with my presidency. for i am prepared to allow history's judgment of my term in office to rest if necessary exclusively on my nomination 30 years ago of justice john paul stevens to the u.s. supreme court." that is an extraordinary statement. it is not parallel to an american history. i don't know of any other american president who would say that he would be content to let his reputation rests on the act of dominating a supreme court justice. but it is very appropriate and i think it really captures the for

the legacy and the legacy of justice stevens. coming in as a result of legacy, president ford confronted a deeply wounded nation and saw his mission as being a time to heal. his mission was to heal the country. watergate had challenged the primacy of the rule of law, but the challenge to the rule of law during the nixon presidency was not limited to the crimes of watergate. it had also taken place through the judicial section -- judicial selection process. when nixon was running for president in 1968, he said if he were elected president, he cannot think of a finer chief justice then henry friendly, who was the legendary judge of the second quarter. nixon made 6 nominations to the supreme court.

he never nominated henry friendly. the unsuccessful nominations of two judges in particular were deeply divisive. john hart keeley, who went on to be a great constitutional scholar, at the time was the general counsel of the transportation department. in anticipation of justice douglas's resignation, he wrote a memo which captured the conservative time. he talked about how watergate was not the only thing that the nixon presidency had done to undermine constitution government. equally important he said was the cynical selection process, specifically the haynesworth and carswell nominations. when president ford became president and justice douglas step down, he faced great

pressure from many constituencies to name someone from a range of ideologies and perspectives. but president ford decided that the right thing to do was to pick someone not on the basis of ideology but on the basis of their strength as a jurist. he told the attorney general, who was an extraordinary person in american history, he told him he wanted a list of candidates and he wanted the attorney general to consider the following factors. competence, previous court experience, personal integrity, a history of independent thought, and he wanted someone in their 50's. because he wanted the justice do

have a substantial time on the bench. he got more than he bargained for, i am sure. attorney general levy produced a list of candidates, and it seems clear he highlighted then judge stevens. president ford took the list, he read some of judge stevens' opinion, which he announced precise, and legally sound, and he slept on that and nominated him the next day and he was confirmed within three weeks, 98-0. it was a very different world, but it is also a testament to justice stevens, and respect that he held on the bench and bar at that time. there was criticism that in historical hindsight it seems striking that the national organization of women word about his opinion on the era,

whether he would be good for women's rights, and there was also concern about his health. [laughter] but again, as the 98-0 vote selects after three weeks of consideration, there was an enormous embrace of justice stevens as the right person to pick it that time. the new york times, when justice stevens retired, observed he might be the last justice from a time when ability and independents rather than perceived ideology or viewed as the crucial qualification to be on the court. i think the broader point is that his nomination by president ford was a powerful statement of faith in the rule of law and a healing act at a time of deep division. the selection of someone

president ford called the finest legal mind, which is the title of today symposium, played an important role in restoring faith in government. i think as we focus on his legacy on the court, it is also important to recognize the legacy of his nomination. then-justice stevens legacy on the court with an historical impact of his nomination, i think all of us know and it's just is reaffirmed by the first two panels, he was profoundly committed to the rule of law. he took precedence seriously. he considered carefully the consequences of his decisions. he thought deeply about the judicial role. he was fair. and he also changed his mind when he thought that was appropriate. and so when he spoke at the symposium, his lecture was

called "morning on the job." it reflected -- "warning on the job." it reflected how he looked at cases and it reflects how his views changed over time in areas such as affirmative action and due process. it is because he fulfilled his great promise, it is because he became the kind of judge that he became that president ford celebrated his role in selecting justice stevens. so after the fordham event, i called back president ford's council and i told him, moved justice stevens was when a president. when i presented president ford's letter. a few days later, i got a callback for mr. becker and he said, the president wants to hear from you himself. it so it was a great thrill. i call the president ford and i

told him how move justice stevens had been to receive the letter, and president ford was absolutely delighted. he repeated to me what he had written in his letter, that he would be pleased if the judgment of history rested, the merit of his presidency rested on his selection of john paul stevens to the court. his letter concluded, "justice stevens has served this nation well. at all times carrying out his the additional duties with dignity, intellect, and without partisan political concerns. justice stevens has made me and our fellow citizens proud of my three decade old decision to appoint him to the supreme court. i wish him a good, long life, good health, and many more years on the bench. the warmest regards, gerald r. ford."

and so today, marking the conclusion of that tenure on the bench, that most remarkable tenure, we join with president ford in wishing justice stevens long life, good health, and we all say justice stevens, thank you. [applause] it is now my privilege to walk on the acting solicitor general of the united states, neal katyal. is a professor of national security law and director of national security law at georgetown. before coming to georgetown, he served as the locker for justice stephen briar, -- as the law clerk for justice stephen briar.

it is a particular privilege for me to introduce him today because we work together 10 years ago, and got admired his integrity and brilliance, and it has been a privilege for me to watch his career unfolded and the difference he has made in the law and the campaign for individual liberties in the past 10 years. he served as co-counsel for vice president gore and the election in 2000. in 2006, he appeared before the supreme court's. it is appropriate he is here because justice john paul stevens wrote the opinion on that. and the former solicitor general stated that the case was the most import decision on presidential power and the rule of law ever. ever. among his countless accolades,

he was named lawyer of the year and two dozen 6 by lawyers usa, one of the top 50 the gators 45 or younger in 2007. into the snake, one of the 90 greatest washington lawyers in the past 30 years by legal times. please join me in welcoming neal kaytal. [applause] >> thank you very much, bill, for that warm introduction. it is a pleasure to be working with you again, but it is a huge honor to be here today, to return to georgetown anticipate in this extraordinary event to honor one of our nation's leading jurists, justice john paul stevens. he has served the public with great distinction. it began with his worked as a naval intelligence officer in world war ii, continued on his five years of service in the seventh circuit and culminated

with 34 1/2 years with the u.s. supreme court. justice stevens served 26 days as the acting chief justice of the united states into the five, and i for one can attest to everyone how to import an acting role can be. [laughter] for that and many other reasons, i am honored to have the opportunity to share my thoughts. first i want to thank the justice. i think it for his service to our country and to our court. for his intellect, for his willingness to fight for ordinary people. and most of all, for his fundamental decency. i cannot tell you how difficult it is to have your first argument before the supreme court and have a justice who says, "counsel, may i ask a question," in such a decent way. that is so helpful as an advocate to have that. i see the legacy of his qualities daily now and the solicitor general's office.

his former clark reflects many of the qualities that make him who he is, and i see it with other former clerks of years. incredible, extraordinary people that you have mentored and given to this nation. i am not going to be adequately able to summarize justice stevens' jurisprudence and 20 minutes. it spans the gamut. rather than trying to survey his contributions, i thought i would focus on his contribution in one area, namely ethical responsibilities of prosecuting attorneys. i chose this for two reasons. at first, the professional responsibilities of government lawyers is of central importance to the institution were in working out, the department of justice. his work has had a profound impact on the way the department conducts its business.

second, i hope to demonstrate justice stevens' jurisprudence in this area demonstrates many of the qualities for which he is so well-known. his deep concern for fairness, abiding respect for the court and getting prices of government, keen interest in integrity, both real and perceived, of the process by which imports decisions are made, and a new ones, fact based approach to lead to solving prompt bridges -- to solving problems. the first case was decided in june, 1976, six months after he joined the court. they held that a prosecutor had a constitutional duty to turn over to the accused all material evidence that defense counsel had requested. the case concerned a murder trial in which the prosecution had failed to disclose to the

defendant evidence of the victims criminal record. the evidence revealed the victim had previously pled guilty to one count of assault and two counts of carrying a deadly weapon. had this information been made available, it would have supported her argument the victim had initiated the attack that led to his demise. there was one complicating factor. the attorney had not requested this information about the victim's criminal record. the question in the case was whether that made a difference. justice stevens began in characteristic fashion by saying that the answer, "would depend on a review of the facts. after describing the fax in detail, he laid out a framework. the first situation, the first tier involved cases in which the undisclosed evidence this. -- it was the undisclosed evidence demonstrates that the

prosecution knew or should have no because of perjury. in those cases, it would be fundamentally unfair and a corruption of the truth-seeking function. justice stevens said for those cases, a strict standard of material this was required. he said it was material if it had any reasonable likelihood of affecting the judgment of the jury. next to described the cases in which the prosecution would withhold evidence in which the defense had specifically requested. that was the situation in british. he said when the evidence specifically requested and intentionally withheld, when it was material, if it might have affected the outcome of the trial, he said when the prosecutor received a specific and relevant request, a failure to make any response is seldom if ever excusable. finally, he set forth the third tier, the standard that applies when the prosecution fails to

supply exculpatory evidence he said the evidence must be disclosed the decree it's a reasonable doubt that the not otherwise exist. in his view, this standard, while less favorable, reflected the court's overriding concern with the justice of the finding of guilt. it did so he said because it took into account both the unique role of the attorney for the sovereign, who must prosecute the accused with earnestness and vigor, using his word, and a duty to remain faithful to his clients overwhelming interest that justice be done. applying that standard, justice stevens found the prosecutors failure to disclose the evidence had not deprived him of the right to due process, that it was cumulative of evident reticulated of other evidence. nine years later, the court revisited the case. in the next case, the defendant maintains he had been denied a

fair trial because the government had failed to disclose that it paid reward to two principal witnesses for their testimony despite a pretrial request from the defense counsel. the court did not ultimately decide whether the prosecution's withholding of the requested evidence violated the defendant's rights and instead introduced a new standard for evaluating the materiality of the undisclosed evidence. under that standard, evidence is material only if there is a reasonable probability that had the evidence been disclosed to the defense, the result of the proceeding would have been different. the court then overruled the framework. justice stevens vigorously dissented. he argued the reasonable probability standard appeared to include an independent rate in terms of firm convictions despite evidence jury suppression because evidence favorable to accused and relevant to the issue of guilt apparently may still be found not material.

he expressed concerns that the standard would provide prosecutors with incentive to play the odds and take their chance that evidence will later it turned out to not have been potentially this positive. the nondisclosure of evidence was also in a third case. it is a habeas case. the government had failed to disclose significant amounts of exculpatory information, including witness statements and other evidence that raise doubts upon the identity of the defendant as the perpetrator of the crime. after an exhaustive review of the record, justice souter breading for the majority included that the evidence that had been withheld would have made a different result reasonably probable. the court granted the petition for habeas released and ordered a new trial. justice stevens concurred in that case. justice scalea's dissent that

the court should not have granted certiorari. he argued that because it raised only a fast down review of claim of error and not a legal claim. the court had no reason to review it. justice stevens briefly a turk years to clear responded. our duty to administer justice occasionally requires busy judges to engage in a detailed review of the particular facts of the case. even though our labors may not provide bastardi with a newly minted rule of law, the current popularity of population makes this principle especially important. i wish such review was not necessary, but i cannot agree that our position in the judicial hierarchy makes it inappropriate. sometimes the performance of an unpleasant duty conveys a message more significant than even the most penetrating legal analysis. after the court vacated the murder conviction louisiana

retry the case three times. all three resulted in hung juries. in 1998, four years later, he walked out of prison. i choose those three cases because i think they tell us three things about justice stevens' jurisprudence. before i outline them, i offer a caveat. as i was thinking of coming here, i was thinking about the first questions i received an oral arguments, which was justice stevens' question, it was very nice. it was, "council, where in the record can i find support of that?" i had memorized the record, so i knew that. then in march, the government called due process, in which the question was whether the national labor relations board could operate with two members. i did a little better in my

first taste than the second. i don't know if i'm on a downward trajectory. i hope that my knowledge of him has not pi iqued. i think the cases demonstrate his commitment to justice. i take another example, the 2004 case in which the fifth circuit in which the majority held that the fifth circuit had improperly granted the habeas petition despite the fact that by their own admission a horrendously were sentenced to 16 years for a crime, the theft of a crime -- the theft of a capital-letter from wal-mart, which the party only carry a maximum of two years.

they were looking to reverse the fifth circuit decision. justice stevens wrote an eloquent dissent. he said the amending search for signatory interlocken because judges to forget about justice. he emphasized because all parties agree, there is no factual basis that follows eggs or blade to respond had been denied due process and a miscarriage of justice has been manifest. he attacked the majority for losing sight of the basic reason why the writ of habeas corpus indisputably holds an honored position in our jurisprudence to serve against convictions that violate fundamental fairness. justice stevens' view, he was entitled to immediate release. when i think of his tenure on the court, i think of our own practice of confessing error. a confession of error is when someone says we should not have won that case, we got it wrong,

even though we prosecuted someone, we did so for an erroneous reason. that is something that goes back to the first solicitors general and spans republican and democratic administrations alike. the idea behind it is simply we are trying to be faithful and provide candor to the court and also do justice. it was said that frederick lehman uttered the words that are on top of the doors of the attorney general's office. the net is states wins its. whenever justice is done for its citizens and the court. -- the united states wins its justice is done for citizens and the court. i think justice stevens is someone for whom the solicitor general lehman's words ring true. his devotion to the conduct of prosecuting attorney will stand as hallmark of jurisprudence. but to view his work is only concerned with one sign, the

criminal defense side, a summit characterize it, is to miss a second deep virtue of justice stevens' approach to law, respect for the branches of government. this is most obviously demonstrated in the case we talked about this morning, chevron verses nrdc, and a process recognizes the court and justice stevens' acknowledgement of interpretation. that must defer to a legislative branch on the intent is clear. and to the executive branch on the interpretation of the statute is reasonable. at the heart of chevron is empathy for the expertise and views of other branches of government and the recognition that they must reconcile conflicting policies and accommodate competing interests. this respect for the executive branch and the acknowledgement of the difficult position its employees often occupy our evidence of justice stevens'

prosecutorial ethics jurisprudence. in many cases, justice stevens went out of his way to recognize the important role prosecutors played in our system and the importance of zealous advocacy. a final attribute i would isolate is his concern with the integrity both real and perceived of the process by which democratic decisions are made. that concern is clear both recently in his opinion and citizens united and mcconnell against sec, where he argued forcefully about the constitutionality of campaign finance laws, because that laws fight corruption and the appearance of corruption and the electoral process. a similar interest was his stake in the opinion of crawford verses marion county board, which concluded that indiana's voter identification law was constitutional.

i think it is all about what his views in the three cases i was talking about earlier demonstrates. that prosecutorial abuse, and i should say he has described it as exceedingly rare, but when it occurs, should not go unchecked. it is a remarkable legacy. in conclusion, justice stevens, i would like to thank you and members of the georgetown law journal for providing me with up intraday to talk about one let's ask. one aspect of your but is it. i think you for bearing with me, and i wish you the best of luck in your new phase of life. thank you for everything you have done. [applause] >> thank you all for coming. i hope that you have enjoyed it as much as we have.

thank you to dean treanor, thanks to all of our panelists. this concludes the conference. thank you again for coming. [applause] [captions copyright national cable satellite corp. 2010] [captioning performed by national captioning institute] >> the supreme court has started its new term. learn more about the nation's highest court with our latest book, "the supreme court." candid conversations with

justices, attorneys, and reporters. available in hardcover were you buy books and also as an e-book. next, results of a survey concerning children safety on the internet. than a forum on ways to use u.s. culture to improve communication around the world. after that, a hearing on the security of pensions. a new survey of teens and parents shows significant concerns about online privacy. nearly 3/4 of parents believe social media networks did not do enough to protect their children's privacy and over 90% were concerned that children's share too much leverage online. now the heads of the fcc and the ftc, as well as the deputy secretary of education, unveiled a study conducted by common sense media, a nonprofit organization that focuses on children's interaction with media. this is about 55 minutes.

>> we all feel this is one of the most important issues facing families in the united states, which is how to protect our privacy in this incredibly, rapidly defaulting changing digital media landscape we're living in today. privacy is a cornerstone right in our society. it is something that all of us who have grown up and gone to school and out our parents know is incredibly important our lives and in the lives of our kids. at become parents, we know it is with the extraordinary changes over the past 15 years, issues have come to the four that were never true before. we want to address those today, and we want to talk about what this means for parents and kids, for the industry, for schools across the country, and also for government leaders. across the country.

at the end of the day, at common sense media, we have one very fundamental responsibility which is to speak out in an independent, non-partisan way on behalf of the best interest of kids around this country. all you will hear will be through that lens. we hear type -- we feel privacy is no important issue in their lives, and in all of our lives across the country. common sense media commissioned a poll, we believe the first of its kind, to try to gauge the feelings of both parents and teenagers about privacy in this rapidly changing digital media landscape. we wanted to give voice to their thoughts and concerns. i want to give you a brief summary. first of all -- seven or eight major findings -- the first one that we saw was that there was a

disconnect between the way the technology industry in -- view privacy, and how parents and kids and you privacy. parents, in general, do not trust that the technology industry will protect their kids' privacy. there were about 2100 adults polled by zogby international a little more than a month ago. parents, by 3-to-one say they would rate the job but social networks are doing as negative, and 68% said they are not at all confident in search engines keeping private information safe and secure. this is a very fundamental thing that we at common sense media sea. it is not a surprise to us. it underscores the concerns that

parents have. the second thing that parents said is that 88 percent of them would support a law that would require on-line search engines and social networking services to get user permission before they use personal and permission to market products. currently, the state of the market is opt-out, and it is called opt-in, and 88% say they would support opt-in. 85% of teenagers that were polled by zogby international during the survey said that online search engines and social networking services should be required to get their permission before using information to market products to them. the third point we saw was that both parents and teenagers feel both parents and teenagers feel their information is