On Political Books

November/ December 2011 Justice Served

U.S. Supreme Court Justice John Paul Stevens's thirty-five-year tenure was marked by intellectual rigor, lack of pretension, and the firm belief that absolutism had no place on the bench.

By Michael O'Donnell

Five Chiefs is a funny little memoir, as quirky and interesting as its author. Its conceit is a personal history of the Supreme Court arranged through the five chief justices Stevens has known. Two of them—Fred Vinson (who served from 1946 to 1953) and Earl Warren (1953 to 1969)—he knew very little. Vinson led the Court when Stevens clerked for another justice during the 1947-48 term, and Stevens occasionally gave him a ride in his beat-up car. Warren was chief during Stevens’s years of private practice; Stevens argued an antitrust case before him in 1962. Hence the book’s early chapters contain fewer personal recollections and more general remarks on the Court as an institution.

There are some notable early pages, though. Ever opinionated, Stevens levels criticism at two major decisions of the Warren Court. Brown v. Board of Education (1954), he writes, unquestionably reached the right result, but “[u]nlike most admirers of the opinion, I have never been convinced that the benefits of its unanimity outweighed what I regarded as two flaws in the Court’s disposition of the cases.” Namely, the Court held Brown over for an additional term to let the parties debate a remedy, and then it ordered desegregation to proceed “with all deliberate speed”— a famously baffling directive that led to southern foot dragging. Stevens also offers choice words about Griswold v. Connecticut (1965), which laid the foundation for Roe v. Wade by invalidating a state law banning contraceptives. Justice Douglas’s opinion relied not on the text of the Constitution but on “penumbras, formed by emanations” that surround the guarantees of the Bill of Rights and “help give them life and substance.” Stevens calls this “virtual incoherence” and would have reached the same result on less mystical grounds.

Stevens joined the Court during Chief Justice Warren Burger’s tenure. Burger has been widely portrayed as a vainglorious boob: pompous, ineffectual in leadership, and incompetent in assigning and drafting opinions. Stevens decorously spends pages praising Burger’s stewardship of the Court’s heritage by commissioning just the right painting and so forth. But then Stevens reinforces the prevailing image by describing the way Burger withheld his views in the justices’ conferences and assigned opinions to himself or to others who did not command a majority, causing confusion and acrimony as a result. Stevens is no Scalia: he does not come right out and call Burger an ass. As he did in his opinions, Stevens makes his point with the subtle but telling comment. He writes that when he joined the Court, Justice Potter Stewart suggested that he “keep in mind the possibility that either the Chief or Harry [Blackmun], or possibly both, might not adhere to the position that he expressed at conference.”

The best sections of Five Chiefs concern the Court under the leadership of William Rehnquist and John Roberts (1986-2005, and 2005 to the present). Stevens genuinely liked both men and found them to be excellent administrators. Here, as elsewhere, the biggest value of Five Chiefs is its anecdotal color in filling in our understanding of the Court and its members. In a section on Bush v. Gore, Stevens recounts a story about the night Bush’s petition to halt the Florida recount arrived at the Court. Stevens happened to bump into Justice Breyer at a Christmas party; “we had a brief conversation about the stay application. We agreed that the application was frivolous.” The two parted ways “confidently assuming that the stay application would be denied when we met the next day.” The Court’s conservative majority thought otherwise and halted the recount in a flurry of opinions. Stevens concludes, with an understatement that belies the power of his famous dissent, “To the best of my knowledge no Justice has ever cited any of them. What I still regard as a frivolous stay application kept the Court extremely busy for four days.”

Similar comments reveal the limits of Stevens’s regard for Roberts. Stevens, a Chicagoan, built a vacation home in Michigan City, Indiana, in 1961. In 1969, he writes, “John Roberts was a high school freshman in a boarding school in LaPorte, Indiana,” only a few miles away from Michigan City. Stevens swore in the young chief justice, who told the Senate that judges, like umpires, merely call balls and strikes. Every lawyer in the country who heard that statement knew it was cant—especially Stevens, who was there at Wrigley Field in 1932 to see Babe Ruth call his shot. An umpire can’t send you to Guantanamo for the rest of your life with a sack over your head.

While Stevens clearly respects the abilities and achievements of both Rehnquist and Roberts, he uses Five Chiefs to dismantle several of their decisions. For Rehnquist he focuses on the trigger-happy death penalty jurisprudence and, more esoterically, the late chief’s enthusiastic development of the doctrine of sovereign immunity, which prevents individuals from suing state or federal governments and has frustrated many a civil rights plaintiff. Stevens contends that Rehnquist’s Eleventh Amendment cases—in which the Court constitutionalized the sovereign immunity doctrine without much regard for the amendment’s text—was the worst mistake of Rehnquist’s tenure.

For Roberts, Stevens singles out a case that was decided after his own retirement. In Snyder v. Phelps (2011) the Court overturned a jury verdict in favor of a plaintiff whose son’s military funeral was heckled by religious fanatics bearing posters saying “God hates fags” and “Thank God for dead soldiers.” The father sued under the tort doctrine of intentional infliction of emotional distress, but the Court held, 8-1 behind Roberts’s opinion, that the protesters’ speech was protected by the First Amendment. Stevens makes clear that he would have joined Justice Alito’s dissent. Common-law judge that he was, Stevens eschewed simple line-drawing for a detailed analysis of each case’s complexities. In Five Chiefs he notes a critical distinction overlooked by the Snyder Court:

It is easy to gloss over the difference between prohibitions against the expression 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.

In other words, the Court could have prevented the protesters from speaking at a certain location—a funeral—without taking the prohibited step of preventing them from uttering a certain message. The protesters could have said the same vile things elsewhere.

Both Snyder and Citizens United are First Amendment cases, and in them Stevens argues for less speech rather than more. This does not exactly put him at the vanguard of liberal constitutionalism. Nor did his dissents in the flag-burning cases of 1989 and 1990, in which he criticized the Court’s judgment that federal and state laws protecting the flag are unconstitutional. It is far more common in our legal tradition to celebrate First Amendment absolutists like Hugo Black than jurists who treat that provision with anything like nuance.

Michael O'Donnell , a frequent contributor to the Washington Monthly, is a lawyer living in Chicago with his family.

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