An era has ended with the death of former U.S. Supreme Court Justice John Paul Stevens, on July 16th. The last and longest-serving World War II veteran on the Supreme Court, Stevens came to work each day with the enthusiasm of a new recruit and the wisdom of an old hand. During his 35 years on the court, from 1975 to 2010, he wrote his way through the most pressing legal questions of the times, often as part of the majority and sometimes in staunch dissent. His legacy includes cases with abiding importance for international affairs.

Stevens’ jurisprudence is hard to characterize. He took each case as it came, carefully considering how it related to the relevant legal texts, to legislative history and purpose, to judicial precedent, and to the foundational values of the United States’ constitutional democracy. He was sometimes called unpredictable or a maverick. Yet this alleged unpredictability was a feature rather than a bug—a reflection of Stevens’ integrity and independence. I clerked for him for a year, from 2005 to 2006, and I saw first-hand his commitment to doing justice to each case. As another of Stevens’ former clerks, the Columbia law professor Jamal Greene, wrote in The New York Times, “As the world around him became increasingly divided, he continued to believe he could persuade his colleagues through the sheer power of his good sense.”

During his long tenure, Stevens sat on many cases that touched on international affairs. Take Massachusetts v. Environmental Protection Agency (2007), a 5-4 case in which Stevens, in his majority opinion, held that greenhouse gases fall within the scope of the EPA’s regulatory authority under the Clean Air Act. The decision was about U.S. environmental law, but it granted the administration of President Barack Obama the authority to regulate greenhouse gases, which then gave him the standing to commit to reducing U.S. emissions at the Paris climate negotiations. (Trump has since reneged on those commitments.)

But Stevens’ most distinctive foreign affairs jurisprudence sought to preserve the rule of law during President George W. Bush’s “war on terror.” His decisions in major cases concerning the Bush administration’s detention of suspected terrorists at Guantánamo Bay, including Rasul v. Bush in 2004 and Hamdan v. Rumsfeld in 2006, advanced two foundational principles: first, that the president is answerable to Congress and the courts, and second, that individuals retain certain rights even when national security is threatened.

Shortly after the 9/11 attacks and the subsequent U.S. invasion of Afghanistan, the Bush administration established a detention center at Guantánamo Bay, Cuba, to hold foreign suspects captured during the war on terrorism. Although Guantánamo was entirely under U.S. control according to the terms of a 1903 lease with Cuba, it was not technically U.S. soil. In a 1950 decision, Johnson v. Eisentrager, the Supreme Court had held that federal courts lacked the jurisdiction to review the detention of German soldiers who had been held and tried abroad by the U.S. military for war crimes. Eager to conduct detention, interrogation, and trials on their own terms, Bush administration officials viewed Eisentrager as a shield against any judicial supervision over Guantánamo detainees. They similarly relied on another World War II precedent—this one called Ex parte Quirin and involving a group of Nazi saboteurs captured on U.S. soil during the war—to justify their plan to try detainees by creating military commissions whose procedural rules were heavily stacked in favor of the prosecutors.

The White House soon found itself on the defensive. In 2004, Rasul v. Bush presented the Supreme Court with the question of whether, notwithstanding Eisentrager, federal courts had jurisdiction when detainees brought challenges to their legality of their detention. Hamdan v. Rumsfeld reached the court two years after Rasul (during the term that I clerked), and it concerned the planned use of military commissions. Most significant, it raised the question of the extent to which these commissions had to comply with the Uniform Code of Military Justice (UCMJ) and with the Geneva Conventions.

Stevens’ experience and longevity served him well for these cases. The oldest member of the court, he had been a Navy codebreaker in World War II, rising to the rank of lieutenant commander. From 1947 to 1948, he clerked for Supreme Court Justice Wiley Rutledge, whose picture Stevens kept on his office wall. While Rutledge was not on the court for either Quirin or Eisentrager, his dissents in several other cases revealed his dedication to due process for German and Japanese detainees. Stevens was familiar with these cases as a law clerk, having helped Justice Rutledge with one, and he shared Rutledge’s fundamental commitment to judicial oversight and fair procedures.

Stevens' funeral in the Great Hall of the Supreme Court, July 2019
Reuters

Stevens’ decisions in Rasul and Hamdan affirmed the importance of the rule of law to the war on terrorism, narrowly interpreting the World War II precedents of Eisentrager and Quirin in order to differentiate them from the cases at hand. His majority opinion in Rasul concluded that “the federal courts have jurisdiction to determine the legality of the Executive’s potentially indefinite detention of individuals who claim to be wholly innocent of wrongdoing.” This meant, practically speaking, that Guantánamo prisoners had some degree of recourse to the federal courts. In Hamdan, Stevens ruled that “the military commission convened to try Hamdan lacks power to proceed because its structure and procedures violate both the UCMJ and the Geneva Conventions.”  Both cases triggered energetic dissents—Justice Antonin Scalia, for instance, called Rasul “judicial adventurism of the worst sort.”

The years since these decisions have demonstrated both their wisdom and their limitations. By bringing some level of judicial oversight and procedural fairness to the Guantánamo proceedings, the decisions in Rasul, Hamdan, and a later case, Boumediene v. Bush, limited the unbridled executive power claimed by the Bush administration. Yet these decisions did not resolve many core questions, including for how long the war on terrorism can be said to justify detentions made in its name. Today, 40 detainees remain in Guantánamo; all of them have been there for more than a decade. Consecutive presidential administrations have chosen not to pursue criminal proceedings against the majority of these detainees, yet they are still deemed too dangerous to release.

Stevens was a person of overwhelming decency, wisdom, and integrity. He expected that others would be governed by similar values. The jurisprudence he championed was one of judicial supervision rather than judicial control. He viewed the courts not as existing to set foreign policy in the first instance but, rather, as a backstop against arbitrary, unjust, or inhumane decisions by the executive branch. The importance of such a backstop remains self-evident.

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