By John Paul Stevens, Little Brown and Company, 304 pages, $24.99
When Justice John Paul Stevens announced his retirement from the U.S. Supreme Court in April 2010, President Barack Obama identified the qualities he was looking for in the justice’s successor: “an independent mind, a record of excellence and integrity, a fierce dedication to the rule of law and a keen understanding of how the law affects the daily lives of the American people.” Justice Stevens’ memoirs demonstrate that he possesses each of those qualities in abundance.
Justice Stevens organizes his memoirs around the five chief justices with whom he had personal contact during his illustrious career.
After graduating from Northwestern Law School, reportedly with the highest grades in the history of the school (a fact Stevens does not mention), he clerked for Associate Justice Wiley Rutledge in 1947 during the Vinson Court, entered private practice as an antitrust lawyer and argued before the Warren Court.
He was appointed by President Richard M. Nixon to the Seventh Circuit, and, after Justice William O. Douglas retired, was named to the Supreme Court in 1975 by President Gerald R. Ford and served during the Burger, Rehnquist and Roberts Courts. His experience with the Court—clerking, arguing and serving—spans over half a century.
Justice Stevens’ memoirs evoke an earlier time. His former law partner, not the White House or the Justice Department, prepared him for his confirmation hearings; he was not asked a single question about abortion; and when the hearings ended, he was left to hail his own cab.
He tells the amusing anecdote of Mississippi Senator James Eastland asking him whether he wished to listen or reply to the testimony of a hostile witness at his confirmation hearings. When he answered no, the future justice and the senator retired from the ongoing hearings to share a little bourbon.
Stevens’ discussion of jurisprudence will be of interest to all constitutional scholars and students of the Court. As Stevens recounts it, the nature of states’ rights and the relationship between the states and the national government is perhaps the most important question running throughout Supreme Court history.
He is not shy about expressing his views and is a fierce opponent of the doctrine of state sovereign immunity.
In discussing the first 12 chief justices, Stevens celebrates the separate opinion of the third chief justice, John Jay, in Chisholm v. Georgia, explaining that there was no place for sovereign immunity in the democratic United States, and then writes himself that the Eleventh Amendment (passed in the wake of Chisholm) did not prohibit or even mention suits brought against a state by its citizens to enforce federal law.
He reminds us that the text of the Constitution does not mention the word sovereignty, but does state that one of its purposes was to “establish Justice,” and quotes approvingly Abraham Lincoln’s 1861 State of the Union address: “It is as much the duty of the Government to render prompt justice against itself, in favor of its citizens, as it is to administer the same between private individuals.”
Justice Stevens singles out for special opprobrium the Court’s opinion in Seminole Tribe v. Florida, holding that Congress could not authorize private plaintiffs to recover for a state’s violation of federal law. He calls the opinion Chief Justice William Rehnquist’s most important as chief justice and writes: “Like the gold stripes on his robes, Chief Justice Rehnquist’s 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’ discussion of his First Amendment jurisprudence and his dissenting opinions in the flag-burning cases also form one of the more illuminating parts of this book.
Stevens recalls the powerful majority opinions Justice William J. Brennan wrote for the Court holding that Texas and the federal government were prohibited by the First Amendment from making flag burning illegal.
Justice Brennan wrote that “if there is a bedrock principle underlying the First Amendment, it is that government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”
Justice Stevens attacks that “glittering generality.” The defendant in the flag-burning case (Texas v. Johnson) was “not punished for expressing any ideas. He was punished because he was using a prohibited method of expressing his message.”
Justice Stevens then links that defense of his flag-burning dissent to other First Amendment cases in ways that readers will find interesting, including a discussion of Justice Samuel Alito’s solo dissent to the Court’s decision last term (Snyder v. Phelps) granting constitutional protection to hate speech uttered outside a funeral.
On the death penalty, Justice Stevens attempts to answer the question: How could the justice who established the framework for much of modern capital punishment law by upholding the death penalty in 1976 conclude in 2008 that the death penalty was unconstitutional? He writes that in the 30 years since he co-authored opinions permitting capital punishment, the Court issued a series of decisions that increased the danger that emotion, rather than reason, would have a controlling impact on sentencing decisions in capital cases and that undermined the sole interest that could justify the survival of the death penalty—that of retribution.
There is much else that is interesting in Justice Stevens’ book. On Bush v. Gore, he has just this to say: He and Justice Stephen Breyer were confident the stay application would be denied; the Court held just a brief conference before it decided the case; no justice has ever cited any of the six opinions that were issued in the case.
In a 2005 address, Justice Stevens emphasized the virtue of “learning on the job” and said, “pre-argument predictions about how a judge or justice is likely to vote are far less significant than the knowledge that he or she will analyze the cases with an open mind and with respect for the law as it exists at the time of the decision.”
In this book, he highlights Justice Louis Brandeis’ admission (in Whitney v. California) that he had once found “persuasive” the argument that the due process clause did not have a substantive component, but later and upon further study changed his views.
It is fitting then that he ends his discussion with this wish for his colleagues: “just as the meaning of the Eighth Amendment itself responds to evolving standards of decency in a maturing society, so also may the views of individual justices become more civilized after twenty years of service on the Court.”
Lewis Liman is a partner at Cleary Gottlieb Steen & Hamilton focusing on complex commercial litigation. He served as a law clerk to Justice John Paul Stevens during the 1988-89 term.