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WASHINGTON-In this year’s centennial celebration of the Northwestern University Law Review, Justice John Paul Stevens recalls how he and Art Seder, war veterans and co-editors of the law review in the summer of 1947, flipped a coin in the review’s office to decide who would take a clerkship on the U.S. Supreme Court. Two Northwestern law professors, close friends of then-Chief Justice Fred Vinson and Justice Wiley Rutledge, told Stevens and Seder that two clerkships would be available, one with Rutledge in the 1947 term and the other with Vinson in the 1948 term. “While more prestige would attach to a clerkship for the Chief Justice, given our advanced age, we both wanted the earlier opportunity,” said Stevens. “To resolve the conflict, we resorted to a tie-breaking method, one that I have often been tempted to use during my years on the bench: We flipped a coin. Needless to say, I won the toss and have had nothing but fond memories of the Law Review and of my good friend Art ever since.” The consequences of that comradely coin flip undoubtedly have been felt in countless ways in the life of John Paul Stevens, but perhaps none more dramatically in the life of the nation than with his majority opinion in Hamdan v. Rumsfeld, the challenge to military commissions established by President Bush. In holding that the commissions violated military and international law, Stevens had to confront, among other obstacles, the high court’s closest precedent on military commissions: In re Yamashita, 327 U.S. 1 (1946), where the justices denied a habeas corpus petition by the Japanese general Tomoyuki Yamashita, sentenced to death by a U.S. military commission in the Philippines for atrocities by his troops. Rutledge dissented in an “unusually long and vociferous” opinion, wrote Stevens in Hamdan, perhaps Rutledge’s most famous opinion in his short six years on the high court. Rutledge wrote: “In this stage of war’s aftermath . . . [i]t is not too early, it is never too early . . . for the nation steadfastly to follow its great constitutional traditions, none older or more universally protective than due process of law in the trial and punishment of men, that is, of all men, whether citizens, aliens, alien enemies or belligerents. It can become too late.”
SUPREME COURT REVIEW
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