Former Legal Clerks Reflect on Justice Stevens

By Daniel A. Farber, The Daily Journal

Most of what you’ve heard about Justice Stevens is true. He’s brilliant and unassuming, yet self-confident. What’s less clear is whether he’s a “liberal,” as he is often called. He spent many years as an antitrust lawyer, and antitrust lawyers are great believers in the virtues of competition in the free market. Instead of searching for the politically comfortable outcome, he has always approached cases as fascinating legal puzzles.

Being his legal clerk, when I worked for him back in 1975-1976, was about the most fun I’ve ever had. He’d frequently bounce through the door from his office next door with a puckish smile and the announcement that he wanted to try out a different approach to a case, which he’d ask us to try to shoot down.

I’ve often wondered whether some of this open-minded inquisitive approach came from his wartime experience as a crack code breaker for the Navy. Trying to figure out what Congress meant in a complicated law can sometimes seem a bit like decoding a message in a foreign language. I don’t think that the idea of ideologically driven judging has ever made any more sense to him than ideologically driven cryptography. Later in life, one of my colleagues used to talk about the “play of intelligence.” It’s something I’ve tried to cultivate in myself, but I’ve never seen it as strongly as in Justice Stevens.