Thursday, December 27, 2012

Five Chiefs: A Supreme Court Memoir - Justice John Paul Stevens

I have written at length on Justice Stevens before in my reviews of The Nine and The Brethren, and unfortunately this review will not offer many more exciting biographical tidbits--perhaps one or two.  This should be fairly predictable.  I have not read Justice Douglas's Points of Rebellion or any other "literature" by the Justices, but I have to believe they would not go out of their way to air any dirty laundry.  Of course, Bill Clinton's memoir simply has to include a segment on extramarital affairs, and any Justice's book has to include a portion on Clinton v. Jones and Bush v. Gore and there are plenty of opportunities for silly jokes--but most (if not all) Justices know better.

There are zero exclamation points in this book.  Many people may fear the exclamation point.  They worry that it will cheapen whatever they say, or that it will look like they make lame jokes.  They see "bad writing" that uses 1 exclamation point (or 2) per paragraph, and they believe that this writer has simply ripped off Kurt Vonnegut too badly and that they probably have nothing of substance to say.  Of course I am not anti-exclamation point at all, but I felt the need to comment on this.  Because Stevens (who is my second favorite Justice) references another legal heavyweight (who is my favorite judge, period) from Chicago, whose book I am reading as a follow-up to this (and is packed with exclamation points):

"In many respects I did not--and do not--agree with the approach of the Warren Court to antitrust issues.  As a young lawyer, I taught courses in antitrust law at Northwestern and at the University of Chicago.  The course at Chicago, called Competition and Monopoly,was traditionally co-taught by an economist and a lawyer.  The year that I substituted for Edward Levi, who later became the attorney general under Gerald Ford and provided much needed leadership in the Justice Department after the Watergate scandal, the economist was Aaron Director, a brilliant teacher whose disciples included Bob Bork and Dick Posner.  While I did not learn half as much  about economics as either of those outstanding rising scholars, I did--through my association with Aaron--pick up a few fundamentals." (95-96)

Bork was 12 years older than Posner, and, sadly, he passed away 8 days ago.  While I find it humorous that Stevens would refer to Bork as a "rising scholar"--and 85 years is not such a bad run--I am not sure how much humor was intended in this statement.  I do not know very much about Bork except that he figured heavily in both The Nine and The Brethren as a constant "potential appointee."  We will have plenty of time to talk about Posner later.

So, the bottom line is that, even though the book lacks exclamation points, and even though I find its structure a bit frustrating, Stevens's winsome character is on full display and further exemplifies why he is my second favorite Justice.  Though he does sometimes go off on tangents that seem a bit uselessly complex (generally reading the physical characteristics of the rooms in the Supreme Court) and perhaps he finds it funny that he is forcing the reader into his strange mathematical mind games, at least in this passage:

"When the marshal shouts, 'Oyez, oyez' (the traditional equivalent of 'hear ye, hear ye'; it is pronounced 'Oh yay,' not "Oh yez'), and requests all of the spectators in the courtroom to rise, the justices ascend the bench in groups of three: the chief justice and the two most senior justices are in the center; the fourth, sixth, and eighth most senior justices enter at the right end of the bench; the fifth, seventh, and ninth most senior justices enter at the left end.  Thus, using numbers to describe the lineup in the conference just prior to entering the courtroom, the sequence is 123-468-579.
The five-four split that impressed me on my first day was that of the five justices who were over six feet tall and the four--Justice Brennan, Stewart, Blackmun, and Stevens--who were all within an inch or two of five feet six.  As the most junior, I was at the end of the line, with the six-foot Lewis Powell (number 7) in front of me, and the even taller Bill Rehnquist (number 8) in front of him.  The only other justices visible to me were the broad-shouldered Thurgood Marshall (number 5), the all-pro running back Byron White (number 4), and our handsome leading man (number 1).  I won't say that I felt insignificant, but I did feel that I was beginning my tenure as a member of a small minority." (135-136)

Clearly, he could have used an exclamation point there, but it would not be appropriate.  This is dry humor, and while I previously thought that judges lacked a certain literary flair that made opinions boring to read, one cannot write opinions on the Supreme Court for more than 30 years and not become a good writer.  And there is often subtle humor found in even the most boring opinions, but one must be attentive to that dryness.

The next paragraph is, however, the one passage in the book that made me laugh out loud:

"During the argument, Lewis Powell carefully explained that when we adjourned I should be sure to push my chair back far enough to enable Thurgood and himself to walk past it before descending the steps from the bench.  At the end of the argument, attentive to that counsel, I gave my chair such a firm shove that I missed catapulting down those stairs by only a matter of inches.  I continue to thank the good Lord for saving me from what would have been a truly memorable opening argument." (136)

A note on structure: I always knew this book was called Five Chiefs and I knew enough about the Court that it didn't seem to line up with reality (if Stevens was writing about each of the Chiefs he served under).  There was Burger, there was Rehnquist, and there was Roberts--only 3.  Was Stevens implying that he was a "chief" in his own right?  (Not in the least--though he does include one chapter about his role as Senior Associate Justice and the brief period in 2005 when he served as interim Chief Justice).

Chief Justices Vinson and Warren are also included because Stevens "knew" them: Vinson, because Stevens served as a law clerk to Justice Rutledge during the 1947 term; Warren because Stevens's first and only time presenting an oral argument at the Supreme Court was before him.  As previously noted in The Brethren review, Earl Warren is universally beloved, and he can seemingly do no wrong (save the Court's antitrust jurisprudence, referenced above).  More interesting is Stevens's chapter on Warren Burger--which is probably the most intriguing part of the book (at least for those that have read The Brethren).

After reading Five Chiefs, I am apt to dismiss The Brethren as blow-hard escapist entertainment (i.e. look at all those silly Justices and that bumbling moron of a chief!) because the stories about Warren Burger are extremely demeaning.  I was willing to give Woodward & Armstrong the benefit of the doubt, and while I know that Stevens must have had certain reputational elements in mind when he published this book, I am much more persuaded by his view that Burger made more positive contributions to the Court than negative.  He does, indirectly, reference The Brethren:

"In my judgment Warren Burger's contributions to the law in the years after I joined the Court have not been fully appreciated, possibly because unfriendly critics have had so much to say about Burger's evolving views about the abortion issue.  Public interest in that issue increased dramatically in the years after 1973, when Roe v. Wade was decided.  As the seven-to-two vote in that case illustrates, the basic issue was not as controversial in 1973 as it became in later years." (142-143)

He does, however, verify that Burger had certain "lapses of memory" when he would assign a justice in a minority position to write the majority opinion, or change his own vote so he could write the majority.  Generally though, he has nothing but kind things to say about every Chief.  There are many more passages I could quote but I would like to get to my major criticism of the book: there is almost nothing about the other associate justices.

To be sure, Scalia probably gets most of the publicity in this book, and it is quite funny when Stevens mentions the dual Senate Confirmation Hearings of Rehnquist (to ascend to the position of Chief) and Scalia (to join the Court):

"Bill had served as an associate justice for fourteen years when President Reagan chose him, in 1986, to be the chief justice.  In the Senate, a substantial number of legislators opposed his confirmation because they regarded his opinions as reflecting insensitivity to civil rights issues.  That opposition overlooked the fact that the change in his status from an associate justice to chief justice would not give him any additional voting power.  Because of the senators' concentration on the qualifications of Rehnquist, they devoted relatively little attention to the far more important question of what kind of justice the new appointee, Antonin Scalia, would be.  He, of course, was exceptionally well qualified and would have been confirmed overwhelmingly even if he had been the center of attention.  Nonetheless, there is irony in the fact that the senators were far more interested in raising questions about Rehnquist than they were in questioning the new justice." (170)

Moreover, I was intrigued to see what Stevens thought of Justice Douglas--but there is very little material on him.  Of course, Justice Stevens replaced Justice Douglas, and it was noted in The Brethren that Douglas kept wanting to come to work.  Stevens does not have anything particularly mean to say about Douglas, though he doesn't have anything particularly nice to say, either.  There is one extremely chilling incident that I had never read about before:

"Chief Justice Stone's dissent in Girouard v. United States (1946) also arose out of an individual's conscientious objection to a governmental requirement [the previous paragraph discussed the Gobitis case, which involved mandatory flag salutes at school].  Although willing to take an oath of allegiance to the United States in order to become a citizen, Girouard was unable to swear that he would take up arms in support of the country.  The question was whether he could nevertheless qualify for citizenship.  In earlier cases presenting the same issue, Stone had joined dissents from decisions holding that the applicant could not qualify for citizenship without taking the required oath.  In the Girouard case, the majority decided to overrule those cases and adopt the views that Stone had previously endorsed.  Stone, however, thought that the legislative history of proposed amendments to the statute that Congress had refused to enact demonstrated that Congress had rejected his interpretation.  Although he still thought the law unwise, he believed he had a duty to accept what he understood to be the interpretation that Congress intended.
Stone planned to explains his views in an oral announcement of his dissent in open court, but while Justice Douglas was reading the majority opinion, Stone suffered his fatal cerebral hemorrhage." (35-36)

Stevens does, however, become very angry about certain opinions that were written.  He certainly makes clear that he did not appreciate a lot of Rehnquist's decisions, and he makes a stinging reference to Kennedy's opinion in Citizens United.  But he does not spare Justice Douglas.

At this point the review should shift into the "law school usefulness" test--and I think this book is probably more helpful than either The Nine or The Brethren on that score.  Because Stevens does not just supply background information on how certain cases were decided, but he whittles down incredible amounts of legalese and scholarly debate to give a law student a crisp explanation of an issue.  Most notable is his account Marbury v. Madison which still confuses me (I am not even sure what a "justice of the peace" is supposed to be)--and 1Ls taking Constitutional Law will benefit from the three or four paragraphs he takes to explain the significance of that case.

Also noteworthy are the extremely confusing cases of Myers v. United States (1926), Humphrey's Executor v. United States (1935) and Morrison v. Olson (1988).  Stevens describes these cases briefly and lucidly, and I wish I had this book at the time I was taking the course (the book was published in 2011, but I do not think it came out before April or May--and even if it did, I doubt that I would have sought it out).  I would have done much better than a B.

But to return to Douglas--Stevens clearly has antipathy for the majority opinion in Lochner, but he has a different view of Griswold v. Connecticut--there, he clearly agrees with the result, but for different reasons (and for reasons, which, I must admit, strike me as just as confusing in the critique he makes of Douglas):

"Earl Warren did not write an opinion in one of the most important cases decided during his tenure as chief justice--Griswold v. Connecticut (1965)--the case challenging the constitutionality of a Connecticut statute making the use of contraceptives a criminal offense.  He must, however, accept responsibility for assigning the majority opinion to Justice Douglas, who, unfortunately, crafted an imaginative rationale for reaching an obviously correct result.....Justice Douglas's opinion is now famous--or infamous--for its reliance on the proposition 'that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.'  In his view, the statute violated the 'penumbral rights of "privacy" and "repose"' that earlier cases had protected.  Presumably he avoided the straightforward reliance on substantive due process that Justices Harlan and White advocated because of his concern that construction of the word liberty that would be broader than the specific guarantees in the Bill of Rights would rejuvenate the universally despised decision in the Lochner case.  Unfairly, in my opinion, Justice Douglas interpreted, '[o]vertones of some arguments'--presumably those of the appellants challenging the Connecticut law--as suggesting that the Lochner case 'should be our guide.'  It would have been more accurate to describe those arguments as identifying a critical difference between Mr. Lochner's claimed right to freedom from regulation of his economic decisions and the kind of fundamental right that Justice Holmes identified in his Lochner dissent......(107-108)

Stevens becomes absolutely apoplectic when talking about Rehnquist's opinion in Seminole Tribe of Fla. v. Florida (1996)--he thinks Rehnquist is a great guy, but he does not like the way he adorned his robe with special stripes, and he thinks this decision is one of the worst ever!  It deals with the issue of sovereign immunity and is another topic in Constitutional Law that made me want to throw up.  Regardless, "[l]ike the gold stripes on his robes, Chief Justice Rehnquist's writing about sovereignty was ostentatious and more reflective of the ancient British monarchy than our modern republic.  I am hopeful that his writings in this area will not long be remembered." (197)

He has good things to say about Justice Jackson (who might be in my top 5 favorites) but he scolds him for leaving the court to serve as Lead American Prosecutor in the Nuremberg Trials.  I am quite surprised that Stevens believes this was such a great error.  Indeed, from what I have read, it seems as though Jackson benefited greatly from the experience, and learned more about the degree to which the United States was threatened by shades of totalitarianism.

One final word on Citizens United:  I mentioned before that I got a B in Con Law.  Well, that is only Con Law I and II--that is, Separation of Powers, Equal Protection Clause, Due Process Clause, Commerce Clause, etc.  First Amendment is Con Law III at our school and I am still awaiting my grade.  I am praying for a good one because I just got a C+ in Accounting for Lawyers--tied for my worst grade in law school.  So it is quite funny to see Stevens speaking of a "passing grade" in a similar context:

"It is easy to gloss over the difference between prohibitions against the expression of particular ideas--which fall squarely within the First Amendment's prohibition of 'rules abridging the freedom of speech'--and prohibitions of certain methods of expression that allow ample room for using other methods of expressing the same ideas.  The difference is much like the difference between speech itself and money that is used to finance speech.  Given the fact that most of his colleagues joined the chief in his funeral-speech opinion, perhaps I should give him a passing grade in First Amendment law.  But for reasons that it took me ninety pages to explain in my dissent in the Citizens United campaign finance case, his decision to join the majority in that case prevents me from doing so."  (221)

Another place where an exclamation point would not be appropriate--but another one of the best declarations in the book.

In the end, Justice Stevens is wary of offending his colleagues, and he puts it better than anyone else I have ever read or heard, when he mentions that, while it seems like they all hate each other in their opinions (indeed if one reads Heller v. United States (2008), it looks like Stevens and Scalia are about to go for each other's throats--but Stevens mentions in this book that he is actually very good friends with Scalia), a greater intelligence is at play:

"I have no memory of any member of the Court raising his or her voice during any conference over which I presided or showing any disrespect for a colleague during our discussions.  In his State of the Union address in 1976, President Ford eloquently referred to our country as a place where Americans can disagree without being disagreeable.  That comment accurately describes the Supreme Court where I worked.  It is a place where we not only could but regularly did disagree without being disagreeable."  (244)

In short, one could do far worse than following the example provided by Justice Stevens, and Five Chiefs (like The Prince) may be considered a sort of  "how-to" manual: how to be a great jurist, and a great person too.

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