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Geoffrey R. Stone

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Five Chiefs: A Review of Justice John Paul Stevens' New Supreme Court Memoir

Posted: 10/03/11 01:52 PM ET

Five Chiefs refers to the five Chief Justices Justice John Paul Stevens encountered during the course of his more than 60-year career as a law clerk, lawyer, federal court of appeals judge, and justice on the Supreme Court. Justice Stevens offers lively and engaging insights about each of the five chiefs with whom he worked: Fred Vinson, Earl Warren, Warren Burger, William Rehnquist, and John Roberts. In the process, he discusses their times, judicial approaches and opinions, respective roles on the Court, personal and professional challenges, and their relations (good, bad, or indifferent) with their colleagues and the Court as an institution.

Five Chiefs is not a systematic or thematic history of the Supreme Court since the late 1940s, but a series of anecdotes, observations and musings that entertain, enlighten, and inform in an accessible and engaging manner.

Five Chiefs is very definitely a personal memoir, and throughout Justice Stevens adopts the rather startling device of referring to his fellow Justices by their first names -- Bill, Nino, John, Lewis, Ruth, Clarence, etc. -- rather than by their more formal titles. It took me a few pages to get used to this, but once I did it added to the sense of intimacy and, more importantly, to an understanding of how the Justices actually perceive and relate to one another -- as real people rather than as mysterious and largely impersonal lawgivers masked within black robes. (More on "black robes" in a moment.)

What do we learn from Five Chiefs? Here are just a few examples. During his year as a law clerk to Justice Wiley Rutledge during the Court's 1947 term, a young John Paul Stevens had the opportunity to observe his future colleague, Thurgood Marshall, argue an important Equal Protection case to the Court. He describes a lively exchange between "Thurgood" and "Felix (Frankfurter)" that left him with the sense that Marshall was "a remarkably talented advocate."

As for Chief Justice Vinson, Stevens, like most of the other law clerks that year, "was not an especial admirer of the chief." As "a country lawyer from a small town in Kentucky," Vinson seemed "a little overwhelmed" by his much more experienced colleagues. Indeed, the young Stevens thought that Vinson "may have a little difficulty following some of the more esoteric arguments advanced by counsel." Nonetheless, Vinson apparently "had confidence in his ability to identify which outcome of a case would, in his judgment, best serve the public interest."

Brown v. Board of Education, "one of the greatest achievements in the history of the Court," was largely the work of Vinson's successor, Chief Justice Earl Warren. In Five Chiefs, Justice Stevens is especially interested in the role that what we would today call "originalism" (i.e., looking to the original intent of the Framers as definitive) played in the decision.

After Brown was first argued to the Court, the year before Warren's appointment, the Court delayed the decision and "ordered the parties to address several questions about the history of the drafting and ratification of the Fourteenth Amendment." In Justice Stevens' view:

"This was a mistake. The equal protection clause of the Fourteenth Amendment sets forth a clear principle: states may not 'deny to any person ... the equal protection of the laws.' The circumstances of its ratification cannot transform that command of equality into a license for discrimination."

When the Court finally issued its unanimous opinion in the spring of 1954, "it was," Stevens declares, "dead right." More specifically, though, he enthusiastically applauds Earl Warren for summarily rejecting "the historical argument." Stating a condemnation of "originalism" that echoes throughout Five Chiefs, Justice Stevens insists that "the fact that supporters of the Fourteenth Amendment may not have intended to put an end to segregated grammar school education... does not provide an acceptable reason for limiting the scope of the fundamental principle of equality embodied in the equal protection clause."

John Paul Stevens was appointed to the Supreme Court by President Gerald Ford during the tenure of Chief Justice Burger, who succeeded Warren in 1969. Justice Stevens lauds Burger's "signal contribution to American law: improvements to the administration of justice within and beyond the Court." He also especially admires "Burger's opinion for the Court in United States v. Nixon (1974)," which "required President Nixon to produce the tape recordings that eventually led to his resignation." Because all four of Nixon's appointees joined Burger's unanimous opinion, the decision "powerfully illustrated the integrity and independence of the Court" and "may well have done more to inspire the confidence in the work of judges that is the true backbone of the rule of law than any other decision in the history of the Court."

With respect to another landmark decision of the Burger Court that predated his arrival -- Roe v. Wade (1973) -- Justice Stevens notes: "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. Indeed, in 1975 when the Senate Committee on the Judiciary held hearings on my nomination to the Court, no senator asked me a single question about abortion." On the merits, Justice Stevens concludes that Roe was rightly decided, though he prefers Justice Potter Stewart's argument in a concurring opinion, that the law prohibiting abortion violated "the 'liberty' that is protected by the Due Process Clause," to Justice Harry Blackmun's argument for the majority which placed too "much emphasis on a so-called right of privacy protected by 'penumbras' of the Bill of Rights."

Although Justice Stevens generally admired William Rehnquist, he at times found him to be too pompous and self-important. Notably, for example, "Bill... affixed four gold stripes on each sleeve of his robe," clearly proclaiming that "he held a unique position among the nine of us." As Justice Stevens tells the story:

"[Rehnquist's] decision to embellish his robes with those stripes came as a surprise to the rest of us. He had previously described his favorable impression of the colorful robes worn by some judges at an international conference that he had attended and suggested that we consider a change in our attire." While the other justices immediately and uniformly gave Rehnquist a negative response, "with respect to his own robes, he went right ahead."

Despite Chief Justice Rehnquist's influence on the Court, Stevens concludes that "Thurgood's retirement may well have been the most significant judicial event of Bill Rehnquist's tenure as chief justice" because of "the changes in the Court's jurisprudence that are attributable to his successor, Clarence Thomas." A stream of important "decisions made by five-to-four votes in which Clarence was a member of the majority are evidence of that importance because I am convinced that Thurgood would have voted with the four dissenters," one of whom was Justice Stevens, "in most, if not all, of them. While Thurgood's jurisprudence reflected an understanding that the Constitution was drafted 'to form a more perfect Union' -- and thus to accommodate unforeseen changes in society -- Justice Thomas' repeated emphasis on historical analysis seems to assume that we should view the Union as perfect at the beginning and subject to improvement only by following the cumbersome process of amending the Constitution." Justice Stevens clearly has little use for that position.

Beyond that, though, he was appalled by Chief Justice Rehnquist's opinions on questions such as suing the government and state rights, i.e., sovereign immunity and the Eleventh Amendment: "Like the gold stripes on his robes, Chief Justice Rehnquist's," (note that here he is not "Bill"), "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 be long remembered."

Justice Stevens was also quite put off by Rehnquist's "remarkably consistent pattern of voting to uphold death sentences," sometimes in opinions that Stevens regards as "abysmal." For Justice Stevens, "the death penalty represents 'the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes.'"

Having heard all of John Roberts' many "superb" arguments to the Court as an advocate, Justice Stevens thought him "the obvious first choice to fill any vacancy that might occur on the Court while George W. Bush was president." And, indeed, Stevens was soon confirmed in his view of Chief Justice Roberts: "The first decision that he made in his capacity as chief justice of the United States was unquestionably correct and consistent with his role as the first among equals: he decided not to decorate his robes with gold stripes." Beyond that, however, Stevens found little to like about much of Chief Justice Roberts' jurisprudence. In case after case, on issues such as the constitutionality of gun control laws, the constitutionality of efforts to promote racial integration, the constitutionality of various aspects of the death penalty, the constitutionality of abortion regulations, and the constitutionality of campaign finance regulations, Stevens found himself in strong dissent from majority opinions either authored or joined by Chief Justice Roberts.

Nonetheless, Justice Stevens remains optimistic, albeit with a touch of irony. In criticizing an important Eighth Amendment cruel and unusual punishment decision, Harmelin v. Michigan (1991), in which Stevens dissented, he observes that most of the Justices who joined the majority were relatively new to the Court, and that the Justices they had replaced would all probably have joined him in dissent (which would have made the dissent the majority). He then adds: "Just as the Eighth Amendment itself responds to evolving standards of decency in a maturing society," (clearly a dig at the majority, which refused to accept this proposition), "so also may the views of individual justices become more civilized after twenty years of service on the Court." As a Justice who himself evolved somewhat during the course of his career, it's difficult to tell whether this observation is meant to be tongue-in-cheek or autobiographical. Justice Stevens does not say.

As these insights and anecdotes illustrate, Five Chiefs is inside baseball at its best. Justice Stevens brings to life the secret world inside the Supreme Court in a way that is illuminating, instructive and satisfying. We surely don't know everything, but we definitely know more than we did before. Anyone interested in the Supreme Court should read it.

This review was first published in the Washington Independent Review of Books (October 3, 2011)