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To mark our 30th anniversary, we’ve reached into our archives to highlight key events and players who made a difference since we made our debut. A version of the following article appeared in the Nov. 19, 1990, edition…
Justice John Paul Stevens seems to wear a pixieish smile on his face as often as he wears a bow tie, which is almost always. But lately, he has appeared testy on the bench — not toward the lawyers before him, but toward his fellow justice, Antonin Scalia. Twice during recent oral arguments, Stevens has come to the rescue of lawyers who were being harangued by Scalia. During Ford v. Georgia, a case involving jury selection, Harvard Law Professor Charles Ogletree had spent several minutes answering factual questions about his client, the criminal defendant, when Justice Harry Blackmun interrupted pointedly, “I hope you can get to the merits.” But then Scalia said, “Before you do, …” and launched into a search for the history of the 14th Amendment claim made in the case. Scalia spent several minutes on his point, which seemed to take Ogletree by surprise. Finally, an impatient Stevens asked, “This is just brand-new up here, isn’t it?” — as if to say that only Scalia would cook up a line of questioning like that. The day earlier, Stevens had snapped at Scalia in the closely watched Harmelin v. Michigan, a case which tests the constitutionality of a Michigan law that requires a life sentence for possession of more than 650 grams of cocaine. Solo practitioner Carla Johnson of Detroit was holding her own under a barrage of questions about her contention that Michigan is “way out of line” with its harsh drug laws, when Scalia hatched a hypothetical to argue that she was asking for a new and impossible constitutional rule. Johnson had contended that the life sentence should be treated differently under the Constitution, in the same way that a death sentence is treated differently, because a life sentence is the equivalent of a sentence of “death in prison.” How about a 30-year sentence for a 60-year-old, Scalia asked, or a 20-year sentence for a 70-year-old? “You really can’t say life in prison is different” from those hypotheticals, said Scalia. Johnson seemed at a loss for words, so Stevens answered for her, with irritation toward Scalia in his voice. Life in prison, snapped Stevens, “is not different from a very rare and occasional hypothetical.” Scalia looked sternly at the defense attorney and said, “That’s your answer?” Johnson replied wryly, “Yes, and an excellent one.” It was a humorous moment that may have won her points at the same time that Stevens made his own: Scalia should stop hogging argument time with interesting but ultimately peripheral questions or hypotheticals. The Harmelin case was also the occasion for a rare motion, granted by the Court, that forced the state of Michigan to revise and reprint its brief. The government brief had a footnote about an Aug. 12 article in The Detroit News, in which Allen Harmelin conceded, apparently for the first time, that he had sold small amounts of cocaine. Soon after the brief was filed, defense attorney Johnson made a motion to strike the footnote from the brief because it contained information that was outside the trial record. She said the submission was a violation of ethical practices and should be eliminated. The Court seemed to agree and ordered revision of the brief.
Update: Justices Stevens and Scalia clashed again just last week — this time in the pages of an opinion on the constitutionality of lethal injection. As Tony Mauro reports in this edition, Stevens, in a concurrence in Baze v. Rees , announced that he now believes the death penalty is unconstitutional. He’s the first death penalty abolitionist on the Court since Harry Blackmun, who retired in 1994. Scalia, in a separate concurrence, was critical of Stevens’ change of heart. “Purer expression cannot be found of rule by judicial fiat,” Scalia wrote, attacking Stevens for basing his new stance on his own experiences as a judge. “It is Justice Stevens’ experience that reigns over all.”

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