The Last Great GI

Early last week I had one of life's great recurring experiences when I spied a book on the library shelf that I didn't know about and knew I had to read. It was The Making of a Justice, the autobiography of Justice John Paul Stevens, who served on the Supreme Court from 1975 to 2010 and died three years ago at the age of 99.  He had a classic GI generation life--superbly educated at little cost, a code-breaker during the Second World War, and a successful attorney in his home town of Chicago.   He does not seem to have been very active in politics, but he knew then-Senator Charles Percy fairly well, and Percy in 1970 secured Stevens's appointment as a federal district judge. Five years later, that very underrated president Gerald Ford chose Stevens for the Supreme Court.  He served with eighteen different justices, including three chiefs, over the next 35 years.  

The bulk of the book is a term-by-term, case-by-case account of Stevens' years on the court.  Condensing a lot of legal history into a small space, he is occasionally too abrupt, and there were times when I could not figure out exactly what the case under discussion was about.  He is unfailingly polite towards all his colleagues, referring to them without exception by their first names, including "Tony" for Anthony Kennedy and "Nino" for Antonin Scalia.  This does not however conceal the major historical theme of the book:  the court's steady rightward movement on various fronts during his tenure, marked by a steady erosion of defendants' rights, a narrowing of the government's power to regulate corporate behavior, and some very strange decisions involving the scope of federal power.  And last but hardly least, Scalia saves his most detailed discussions for two 5-4 decisions which can only be described as nakedly partisan: Bush v. Gore, which awarded George W. Bush the presidency in 2000 without finding out who had really carried the critical state of Florida; District of Columbia vs. Heller, in which the majority threw out more than two centuries of legal and legislative precedent to create an absolute individual right to bear arms--a more drastic extension of judicial power, in my opinion, than Roe v. Wade, and one handed down with a 5-4 majority instead of a 7-2 one.  Citizens United vs. F.C.C., which effectively eliminated limits on corporate contributions to campaigns, is a third such decision. 

I came away from the book without much respect for the leaders of the conservative bloc during Stevens' tenure, including Scalia, Chief Justice Rehnquist, and Clarence Thomas.  In particular, the idea that these men--especially Scalia--were genuine "originalists" devoted to determining what the framers originally had in mind simply does not hold up under scrutiny.  A lot of liberals nowadays are comfortable with that characterization because they themselves feel that the founders' opinions came from another age and don't deserve much respect, but in fact, on many issues of great current interest--such as gun control and, often, economic regulation--the founders held views very different from those of today's conservatives.  To give one of Stevens's favorite examples, Justice Rehnquist took the lead in turning a rather fanciful interpretation of the 11th amendment to the Constitution into law.  That amendment, a model of brevity, reads in full: "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State."  Rehnquist decided that that amendment confers a kind of "sovereign immunity" upon the states that forbids the federal government from, among other things, requiring states to observe federal wages and hours laws.  

Stevens's account of numerous death penalty cases also depressed me.  He himself came to oppose the death penalty on principle because the risk of executing an innocent person is simply too great--as DNA evidence has made indisputably clear.  I personally oppose it on principle as well, simply because it is a barbaric act--although, like him, I think that life imprisonment without parallel is an essential substitute. (See inter alia, Sirhan, Sirhan.)  Conservative court majorities however have consistently tried to remove any obstacles to the application of the death penalty.  In a case that did not involve the death penalty, they denied a convicted man's request to do a DNA test that might have proven his innocence of a crime of which he had been convicted.  Many cases involving lesser punishments also reach the court under the 8th amendment's prohibition of "cruel and unusual punishments."  These, alas, are particularly frustrating to citizens like myself who believe that courts should not make law, because there is no way to decide them without the justices using their own definition of "cruel and unusual" and, at times, substituting it for that of state authorities.  I did think that Stevens made an excellent point in arguing repeatedly that prosecutors should not be able to use "victim impact statements" made after a jury has convicted a defendant to influence the length of their sentence pronounced by the judge. Any evidence that can increase a person's sentence, he argued, needs to be tested by the adversary process and submitted to the jury.  Eventually Stevens began losing that fight as the court moved rightward. 

Stevens and some of his conservative colleagues also  argued about the proper use of history--especially legislative history.  Confronted with the question of what a statue really means, Stevens and many other judges look to legislative debates to understand better what the legislators had in mind. Scalia on the other hand argues that they should rely purely on the text of the law in question--which can easily become an excuse for relying on their own view of what it should mean.  

Bush v. Gore and the Heller cases get the most detailed treatment of any in the book because they disturbed Stevens the most.  Regarding the first, Stevens explains that when the Florida dispute over possible recounts to determine the actual winner of an incredibly close election, he and his clerks did not believe that the Supreme Court would ever become involved.  The case involved a dispute over state procedures and state law, and numerous cases at all levels had affirmed that thorough recounts were the proper means of resolving disputes over close elections.   The conservative majority led by Chief Justice Rehnquist did not tip its hand until after the Florida Supreme Court demanded a recount in certain counties, and the 5-4 majority immediately granted a request for a stay and agreed to hear the case. They then fashioned a rather spurious reason for stopping the recount:  that different counties might impose different standards of what constituted a valid ballot, thereby denying Floridians the equal protection of the law.  Stevens appears to note that the effects of different standards would almost certainly be random, and another dissenting justice argued that that problem could have been turned over to the Florida Supreme Court.  The majority, which had presumably been bewailing the nation under the rule of Bill Clinton for eight years, refused to let anything get in the way of Bush's accession.

I wrote my own analysis of Scalia's opinion in D. C. vs. Heller in 2008 when he handed it down, and I think it holds up pretty well. Stevens's dissent emphasized that the Supreme Court in 1939 in United States vs. Miller, had upheld a law banning the possession of a sawed-off shotgun because such a weapon would be of no use in a militia.  A footnote to a 1980 opinion had restated that principle. His fellow dissenter Steven Breyer also pointed out that major cities in colonial times had strict legal regulations against the use or possession of particular firearms within their limits, as did many states subsequently.  Stevens also argues in his book that the Court should never have overruled these earlier precedents without giving some consideration to the obviously disastrous effect that their decision would have in real life.

As for Citizens United vs. Federal Elections Commission, it figures in the book as one of Stevens's last dissents, because speech problems he encountered while reading his opinion in court convinced him that he had had a very small stroke and needed to retire from it.  There two, however, a 5-4 majority threw out provisions of at least three venerable pieces of legislation: The Tillman Act of 1907 banning corporate contributions to campaigns, the Taft-Hartley Act of 1947, and the Federal Election Campaign Act of 1971.  It is not going too far, I think,. to say that most recent Republican nominees for the Supreme Court share the view that the entire first two-thirds of the 20th century, including the Progressive Era, and New Deal, and the Great Society, were an unfortunate detour from the true path of American life whose major achievements have to be undone.  That seems to be true to some degree at least of Roberts, Alito, Gorsuch, Kavanaugh, and Barrett, as well as of Clarence Thomas.  By 1975 the principles of that era were sufficiently mainstream that even a Republican president like Gerald Ford could nominate a prospective justice who evidently shared them, just as Richard Nixon, perhaps unwittingly, had nominated Harry Blackmun, and George H. W. Bush later nominated David Souter. Stevens did not in his book make the point that my late friend James MacGregor Burns argued very convincingly in his last book, Packing the Court. The Supreme Court for most of its history has used its extraordinary power to protect property and the status quo, and the Rehnquist and Roberts courts have simply returned to that tradition, taking advantage of the new judicial activism that arose under the Warren Court for their own purposes.  Our best hope for change would be a restoration of the legislative authority of Congress and state legislatures--who now face the task of securing abortion rights.