Tuesday, October 11, 2011

Stevens' Affectionate Memoir of Chief Justices He Knew

Five Chiefs: A Supreme Court Memoir. John Paul Stevens (Little Brown, 2011).
      Sometime between John Paul Stevens’ year as a law clerk in 1947-48 and his appointment to the Supreme Court in 1975, the justices changed the way that they voted on cases in their private conferences. Back when, the justices voted in reverse order of seniority: junior justice first on up to the chief. When he arrived as a justice, Stevens discovered that the voting proceeded in order of seniority, beginning with the chief and on to the junior justice: Stevens for his first seven terms.
      In his affectionate, discursive memoir Five Chiefs, Stevens says he would have preferred the earlier system, thinking it gives the junior justices a chance to persuade the court’s senior members. Still, the new system did give Stevens a chance to play a little game with his colleagues when the vote reached him with the eight justices divided 4-4.
      Stevens’ colleagues at the time included the liberal William J. Brennan Jr. and the conservative William H. Rehnquist, almost always on opposite sides in closely divided cases. So, when it came Stevens’ turn, he sometimes began by saying, “I agree with Bill,” and then waiting a couple of beats before saying which one.
      Admittedly, one has to be a Supreme Court junkie to get the most out of this pleasantry, but for those readers Stevens provides amusing anecdotes and interesting tidbits on every page. He recalls the time when Justice Potter Stewart whispered a disparaging comment about the lawyer then arguing to his adjacent colleague, Harry Blackmun, without realizing that his microphone was on. He also discloses that Blackmun is responsible for the rather obvious suggestion that the justices should meet for the “long conference” to dispose of the petitions that have piled up during the summer in the week before the new term begins on the first Monday in October.
      The heart of the book, as the title promises, are portraits of the five chief justices that Stevens has known as a law clerk (Fred Vinson), lawyer and appeals court judge (Earl Warren), and colleague (Warren Burger, Rehnquist, and John G. Roberts Jr.). As though to establish his bona fides of objectivity, Stevens finds something favorable and something critical about each.
      Stevens frankly admits that he did not admire Vinson. In line with conventional wisdom, he depicts Vinson’s appointment as product of cronyism with President Harry Truman and Vinson’s legal acumen as less than several of his colleagues. But Stevens credits Vinson with a decision on post-conviction remedies that Stevens, as a lawyer, later used to win the release of a wrongfully convicted prisoner.
      Warren is praised for three major decisions: Brown v. Board of Education, the school desegregation case; Reynolds v. Sims, applying one-person, one vote to state legislatures; and Miranda v. Arizona on police interrogation. But Stevens faults Warren’s decision, in the interest of unanimity, to delay immediate implementation of the desegregation ruling, allowing massive resistance to form.
      Burger is given credit for his many steps to improve administration of justice, as well as initiating the current rule limiting arguments to one hour, 30 minutes per side. It was also Burger who suggested that the cover of briefs be in different colors (for example, blue for petitioner’s brief on the merits, red for respondent’s) to help justices find cited sections during arguments. On the other hand, Stevens repeats the well known criticism that Burger was ineffective in managing the justices’ conference: allowing debate to go on too long, interjecting himself before others had spoken, and taking inaccurate notes as to justices’ votes.
      Rehnquist, by contrast, was efficient and impartial in managing his colleagues, according to Stevens, not only in the conference but also in the seemingly mundane task of taking the bench. The justices are summoned for the 10 o’clock opening by a buzzer at 9:55, giving them only five minutes to assemble, don their robes, and (per custom) shake hands with each of their colleagues. Under Rehnquist, Stevens relates, the justices had an unexcelled on-time record of being ready when the 10 o’clock buzzer went off.
      On the other hand, Stevens is less of a fan of Rehnquist’s jurisprudence. In particular, he criticizes Rehnquist’s decision, reversing a recent precedent, of allowing “victim impact statements” in death penalty cases. And he strongly disagrees with Rehnquist’s line of decisions protecting state governments from private suits for violating federal laws.
      Roberts’ portrait, shortest of the five, stresses his legal acumen and daunting skills as an advocate in 39 cases argued before the court. Having heard all of them, Stevens writes, “I consider myself well qualified to testify that he was a superb lawyer.” But Stevens faults Roberts as chief justice for being too lenient in giving lawyers extra time for arguments after the red light has come on. He also thinks Roberts was wrong to have agreed to be sworn in at the White House: Stevens thinks the president should come to the court, not vice versa. Even so, Stevens set his view aside and agreed, as the senior justice, to administer the oath.
      Stevens’ rank in history remains to be determined, but he retired with an outpouring of admiration and affection from Supreme Court watchers of all ideological stripes. After reading this memoir, readers will understand why.

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