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A Supreme Difference

One more point needs to be made about Justice Scalia. He can be hyper- bolic—indeed nasty—in the assertion of his views, and observers seem to overlook that, as if he were entitled to cross the lines of mutual respect. When the Court in 1996, in Romer v. Evans, struck down a Colorado law forbidding localities to adopt ordinances barring discrimination against homosexuals, Scalia’s dissent had a venomous quality. He said that the Colorado law was an effort to “preserve traditional sexual mores against the efforts of a politically powerful minority” that had “high disposable income.” Reading his opinion from the bench, he accused the majority (in an opinion by Justice Kennedy) of signing on to the “so-called homosexual agenda.”

Scalia has paid a price for his pugnacious rigidity. He is what Biskupic says in her punning title, an original—and her portrait of him is masterful. But the men and women who are given the power of judicial independence become great judges by listening and learning and deepening in their understanding. Scalia’s relentless restatement of his ideology approaches narcissistic self-indulgence. Think what this highly intelligent and educated man could have achieved as a judge if he had not fixed his star to a single unconvincing legal theory.

2.

John Paul Stevens, who is about to retire after thirty-five years on the Supreme Court, is at the opposite pole from Scalia as a judge. Far from having an ideological agenda or a rigid theory of constitutional adjudication, he is a powerful example of the independent mind. I think his closest recent model is Justice John Marshall Harlan; like Harlan he is often unpredictable. Reading a Harlan or Stevens opinion, one could sometimes imagine the judge wrestling his way, without a preconception, through the facts and the law to a conclusion.

Stevens rejects the proposition that the open phrases of the Constitution have specific meanings fixed in 1787. When the Court changed its previous view and held that execution of anyone under eighteen was an unconstitutional cruel and unusual punishment, he said: “That our understanding of the Constitution does change from time to time has been settled since John Marshall breathed life into its text.”

The authors of John Paul Stevens: An Independent Life are not Supreme Court specialists like Biskupic, who is a longtime reporter at the Court. Bill Barnhart was a columnist and editor for the Chicago Tribune for nearly thirty years; Gene Schlickman is a retired lawyer who served eight terms in the Illinois legislature. They have filled out their knowledge of the Supreme Court with diligent research and interviews. But their special contribution is the light they shine on Stevens’s years before he went on the Court.

Baseball, in a manner of speaking, led Stevens to the Supreme Court. He was a promising but little-known lawyer in the 1950s in Chicago, an antitrust specialist who had been a law clerk to Justice Wiley B. Rutledge of the Supreme Court. Then he joined the Republican minority staff of the House Judiciary Committee for an investigation of organized baseball ordered by the Democratic chairman, Emanuel Celler. In the summer of 1951 there were public hearings—well publicized, as Celler had expected—that focused on baseball’s standing exemption from the antitrust laws. John Paul Stevens examined such notable witnesses as Ty Cobb (he did not think that the legal monopoly had improved the quality of the game) and Philip K. Wrigley, president of the Chicago Cubs. (Stevens was a Cubs fan.)

His public role in the baseball hearings probably had a part in Stevens’s selection almost twenty years later for a difficult job, as counsel to a commission set up by Illinois bar associations to investigate charges that two state supreme court justices had taken bribes. The charges came from Sherman Skolnick, a man described by Barnhart and Schlickman as an “unrelenting civic scold.” At first few took his claims seriously. But Stevens found damaging evidence. He and the commission concluded that the two justices had engaged in acts of impropriety and said that they should leave the court. They resigned.

Neither then nor afterward did Stevens seek a judicial appointment, Barnhart and Schlickman write. Nor did he have political associations or backing. Senator Charles Percy of Illinois recommended him to the Nixon administration when a vacancy arose on the United States Court of Appeals for the Seventh Circuit. But at first Stevens told Percy that he did not want the appointment. He urged the senator to ask again in six years, after he had paid for his children’s education. Percy described what followed in a 1998 oral history interview:

I said, “Look, John, in six years I may not be senator. In six years we may not have a Republican president, either. In six years, you ought to be on the Supreme Court.”… He then accepted the next day.

The Senate approved Stevens’s nomination to the Seventh Circuit after a perfunctory one-day hearing before the Judiciary Committee. He took his seat in 1970 as a vaguely Republican nominee but without a real political résumé or known legal ideology. And so he remained.

One case from Stevens’s six years on the Seventh Circuit is striking. It concerned a Catholic priest, James Groppi, who led a group of antipoverty demonstrators who disrupted a session of the Wisconsin legislature. The state assembly ordered Groppi to be jailed summarily, without a hearing, for contempt. A federal trial judge blocked the order on the ground that Groppi was constitutionally entitled to respond to the charges against him. But on appeal, a majority of the Seventh Circuit reinstated the contempt order, saying that a public trial of the charges “could easily become a favorite tool in the politics of confrontation and obstruction.”

Stevens dissented. Years later, in a speech to Chicago lawyers, he said that when considering that dissent he remembered Senator Percy’s remark about going on to the Supreme Court. When Percy made it, he said,

I did not place any weight on that suggestion, but when the Groppi case confronted me, I knew that a published dissent would definitely foreclose any such possibility. The collateral benefit of that dissent for its author was immunity from the risk that thoughts about future advancement might subconsciously affect my work on the bench.2

If Nixon had remained president for the rest of his elected term, until 1977, Stevens’s dissent would indeed have kept him from the Supreme Court. Nixon had scribbled “good” next to a news report of the Wisconsin contempt order against Father Groppi. But when the chance arrived, in 1975, Gerald Ford was president. Ford decided to seek no political advantage in filling the vacancy and relied for advice on his nonpolitical attorney general, Edward Levi, the former president of the University of Chicago. Levi and the President saw Stevens as a nonideological choice. In 2005 Ford wrote in a letter:

I am prepared to allow history’s judgment of my term in office to rest (if necessary, exclusively) on my nomination thirty years ago of John Paul Stevens to the US Supreme Court.

The nomination stirred little fuss at the time; Stevens was confirmed unanimously by the Senate after a low-key committee hearing, not televised. And for years he seemed a low-key member of the Supreme Court. He wrote many concurring and dissenting opinions on his own, apparently not seeking to attract other votes for his views. Most observers would have said that his was a quiet voice.

But there was passion in Justice Stevens. It came out explosively, as Barnhart and Schlickman show well, in the case of Gregory Johnson, who in 1984 burned the American flag and was convicted in Texas of desecrating “a venerated object.” Johnson was represented before the Supreme Court by William Kunstler. At the oral argument Justice Stevens asked Kunstler whether the government had “any power at all to…regulate how this flag is displayed in public places,” Kunstler said he did not believe so. “There is no state interest whatsoever?” Stevens asked. “I don’t see any,” Kunstler answered. Stevens: “I feel quite differently.”

The Court decided, 5–4, that the First Amendment protected Johnson’s act as symbolic speech. Justice Stevens read his dissent from the bench, his face flushing with emotion:

The ideas of liberty and equality have been an irresistible force in motivating leaders like…the Philippine Scouts who fought at Bataan, and the soldiers who scaled the bluff at Omaha Beach. If those ideas are worth fighting for—and history demonstrates that they are—it cannot be true that the flag that uniquely symbolizes their power is not itself worthy of protection from unnecessary desecration.

With his commitment to freedom of speech, Stevens might have been expected to agree with the author of the majority opinion, Justice Brennan, who concluded a follow-up flag-burning case a year later by saying, “Punishing desecration of the flag dilutes the very freedom that makes this emblem so revered, and worth revering.” But it was not just the judge speaking in dissent. It was the former Navy cryptographer who in the years after December 7, 1941, worked at Pearl Harbor breaking Japanese naval codes.

Over the last ten years of his service on the Court, Stevens became less an individual voice than a leader of the liberal justices, often though not always in dissent, resisting the movement to the right. When he announced his retirement in April, some commentators suggested that he had become less of an independent voice and more consistently liberal because he had been rethinking his views on the Constitution and the law. He did undoubtedly grow in understanding over the years, but I think there was a further reason for his changed role. It was his profound commitment to the institution of the Court—and his feeling that the increasingly unrestrained radicalism of the conservative bloc was threatening the institution.

That concern was evident in his dissent from the decision in Bush v. Gore in 2000. “Although we may never know with complete certainty the identity of the winner of this year’s Presidential election,” he wrote, “the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.”

Concern for the Court’s role also had a large part in Stevens’s last great statement as a justice, his dissent in Citizens United this past January. As the case came to the Supreme Court, no party asked the justices to reexamine the century-old doctrine allowing regulation of corporate political spending. The Court itself posed that question when, last year, it called for reargument of the case. “Essentially,” Stevens wrote in his dissent, “five justices were unhappy with the limited nature of the case before us, so they changed the case to give themselves an opportunity to change the law.” He concluded that not only did the decision allowing unfettered campaign spending by corporations threaten “to undermine the integrity of elected institutions across the Nation” but that the path taken by the Court to its decision “will, I fear, do damage to this institution.”

One consistent theme in Stevens’s judicial life has been resistance to concentrated power. He wrote for the Court in 1998 when it struck down the line-item veto, which had effectively transferred power from Congress to the executive. And he wrote for the majority in 2004 in Rasul v. Bush, rejecting the Bush administration’s claim that it could detain prisoners at Guantánamo indefinitely, without judicial review by means of petitions for habeas corpus. The issues in the two cases were very different. The fear of power was the same—and the same fear that motivated many of the delegates at the Convention of 1787.

Barnhart and Schlickman rely too much on citations of law review articles and other individual comments. But they also did a lot of their own interviewing and research, and they have produced an intriguing look at a judge little known to the public but crucial to our constitutional structure.

The question that John Paul Stevens leaves for us is the same one that Justice Stone posed so bleakly in his dissent in the Butler case in 1936: Who governs this country? In 1936 the question led a year later to a constitutional crisis, the dispute over Franklin Roosevelt’s ill-judged Court-packing plan. Today we have to hope that the voices of Justice Stevens and others will slow the rush of judicial radicals to remake America in their conservative vision. That is a hope that will soon be tested during the hearings on Elena Kagan.

May 12, 2010

Letters

Justice Scalia & Mr. Micawber September 30, 2010

  1. 2

    The Supreme Court in Groppi v. Leslie (1972) unanimously reversed the Seventh Circuit. Chief Justice Warren E. Burger, writing for the Court, said that Father Groppi was constitutionally entitled to an opportunity to reply to the contempt charge.

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