Private: Reflections on the Legacy of Justice John Paul Stevens

By Amanda C. Leiter, Associate Professor of Law, The Catholic University of America, Columbus School of Law. Professor Leiter was a law clerk for Justice Sevens, 2003-2004. Her following post is adapted from comments she made today at an ACS event examining the legacy of Justice Stevens. Video of the event will be available soon on the ACS Web site and blog.

I want to share my thoughts in two areas.

First, the personal. I haven't seen much commentary on Stevens' views of women in the workplace, so I thought it was worth mentioning that when I started clerking for him in the summer of 2003, I had a 6 month old son. Then last summer, I was home on maternity leave with my then-3 month old daughter when Stevens called and asked whether I'd like to be appointed to brief and argue a case in the Court (needless to say, I said yes!).

In both instances, Stevens neither ignored my parenting responsibilities nor let me hide behind them. When I was clerking for him, for example, he kindly forgave me a few times when childcare emergencies called me away from my desk. But he never relaxed his substantive expectations of me.

Both during the clerkship and last summer, Stevens' quiet certainty that I could carry on my professional life even while keeping my various parenting balls in the air gave me the confidence to do just that, and I will always be grateful to him for believing in me at those critical points and jumpstarting my return to the workforce.

On a professional level, I wanted to share a few thoughts on Stevens' environmental jurisprudence, since that's my area.

No one would characterize Justice Stevens as a tree hugger. He hasn't spent his tenure on the Court crusading for - or against - open space, or endangered species protections, or clean water.

As his friend Ken Manaster has noted, there's some irony in this, because Justice Stevens replaced Justice Douglas, "nature's justice," who ardently advocated for a more proactive role for judges in environmental disputes - for the development of substantive, court-made environmental law. By contrast, Justice Stevens believes that courts should play quite a limited role in reviewing agency action, even in cases involving threats to the environment.

That said, Stevens' view of the limited role of the courts has had an important and I would argue positive consequence for the environmental movement.

To see that, I have to tell you briefly about one of Stevens' most famous decisions, Chevron v. NRDC (1984). This is the case in which the Supreme Court first presented its now familiar two-step analysis for the legality of agency action. Many people forget that Chevron was actually an environmental case. The Court was evaluating the legality of an Environmental Protection Agency rule that defined the circumstances in which power plants had to obtain federal permits before undertaking modifications that would increase their emissions. The Natural Resources Defense Council challenged the rule as insufficiently protective of clean air, but the Court upheld it - not because the Justices thought the rule made scientific or economic sense, but because (1) the Clean Air Act didn't have anything to say about EPA's approach, and (2) in the Court's view, the approach was not "unreasonable."

This approach has come to be known as the "Chevron two-step": step one - read the statute and see if it speaks to the issue at hand; step two - if the statute is silent or ambiguous, defer to the agency's policy choice as long as it's not unreasonable.

Justice Stevens explained the theory underlying this analysis as follows: "When a challenge to an agency construction of a statutory provision ... really centers on the wisdom of the agency's policy, rather than whether [the policy] is a reasonable choice within a [statutory] gap left open by Congress, the challenge must fail. In such a case, federal judges-who have no constituency-have a duty to respect legitimate policy choices made by those who do."

I don't have time to detail subsequent environmental cases in which the Court has applied Chevron, but I'll say briefly (1) the two-step analysis is now ubiquitous, and (2) it's my contention that by and large Stevens has been quite principled in his adherence to the approach.

Turning back to environmental law, though, let me explain why I think Stevens' belief in a limited judiciary, as embodied by Chevron, has been good for the environmental movement.

In the wake of Chevron, environmental advocates have had to sell their cause to the public; to make their affirmative case for environmental protection in the court of public opinion rather than the federal courts. That is a frustrating route to have to take with an issue like climate change, that's so hard to explain to the public. But it's my view that long term success on such a complicated, non rights-based issue requires a framework of positive law. It would be impossible to build a national energy policy via the slow accretion of common law rules - imagine an energy policy that turned on levels of scrutiny. The only way to get a sensible and comprehensive energy policy is to convince the public that such a policy is necessary and then help Congress figure out what the contours of the policy should be.

We're in a frustrating time with respect to that policy-building effort right now, but we succeeded with respect to species protections, and air and water protections, with the result that we have an endangered species act and a clean air act and a clean water act that -- though flawed -- have withstood the tests of time. And I have to believe we'll eventually succeed with respect to climate change. And then, when the agency charged with enforcing climate protections is subsequently challenged for making policies with which some private sectors disagree, the logic of Chevron will ensure that those policies, if reasonable, are upheld by the courts.

That is why, at the end of the day, I think Stevens jurisprudence has advanced environmental advocacy, even though Stevens himself is not cast in the mold of "nature's justice."

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