A Judge Of History

The New York Times informed us yesterday that the Supremes returned to do their business today, this being the first Monday in October and all that.

As noted in the editorial…

The case that will most test the court’s ability to rise above partisanship is a challenge to Indiana’s voter ID law. Indiana is one of a growing number of states that require voters to present a government-issued photo ID. Such laws have been billed as anti-vote-fraud measures, but there is little evidence of vote fraud at the polls. The Republicans who have pushed these laws are trying to make it hard for poor and minority voters, who are less likely than other groups to have drivers’ licenses — and more likely to vote Democratic — to cast ballots. The court has traditionally championed voting rights, but a conservative majority may boost Republican chances in 2008 by endorsing this disturbing barrier to voting.

Of course, the Repugs scream about fraud at the polls to distract from the matter of voters who tend to vote Democratic getting illegally scrubbed from the state records, or placing an abundance of voting machines in Republican districts but fewer in Democratic ones, thus making it harder for Democrats to vote, etc.

Well, the Times Magazine on Sunday September 23rd profiled Justice John Paul Stevens in an article by Jeffrey Rosen; Stevens is now the longest serving justice on the court (and possibly the last bastion against a court that completely holds sway on behalf of conservative interests). And for anyone who thinks of Stevens as a liberal, this should be noted…

''I don't think of myself as a liberal at all,'' he told me during a recent interview in his chambers, laughing and shaking his head. ''I think as part of my general politics, I'm pretty darn conservative.'' Stevens said that his views haven't changed since 1975, when as a moderate Republican he was appointed by President Gerald Ford to the Supreme Court. Stevens's judicial hero is Potter Stewart, the Republican centrist, whom Stevens has said he admires more than all of the other justices with whom he has served. He considers himself a ''judicial conservative,'' he said, and only appears liberal today because he has been surrounded by increasingly conservative colleagues. ''Including myself,'' he said, ''every judge who's been appointed to the court since Lewis Powell'' -- nominated by Richard Nixon in 1971 -- ''has been more conservative than his or her predecessor. Except maybe Justice Ginsburg. That's bound to have an effect on the court.''

Rosen notes here how Stevens has tried to build a consensus to support his opinions…

Stevens...has been notably successful in building majorities by courting his fellow justices -- in particular, (Justice Anthony) Kennedy. His methods of persuasion are intellectual rather than personal, and they are closely tied to the court's procedure for deciding cases. After the justices hear the oral arguments, they meet in a private conference to deliberate. After the chief justice speaks, each of the remaining justices speaks in order of seniority, so that Stevens speaks second. Then the justices vote, and the majority opinion is assigned. The majority opinion later circulates among the justices, and on rare occasions a justice may then change his or her vote, and a majority can become a dissent. But ''you very rarely win votes if there aren't five votes persuaded after our conference,'' Stevens stressed. ''Very rare.''

When he is in the majority, Stevens is careful not to lose votes that start off on his side, often assigning the opinion to Kennedy when Kennedy seems to be on the fence. ''Sometimes,'' he told me, ''in all candor, if you think somebody might not be solid'' after casting a vote in conference, ''it might be wiser to let that person write the opinion,'' because after defending a position at length, people ''tend to become even more convinced'' than when they started. For example, Stevens was effective in winning over Kennedy by asking him to write the majority opinion in Lawrence v. Texas, the 2003 decision striking down sodomy laws, which many liberals consider the Brown v. Board of Education of the gay rights movement. ''It worked out O.K.,'' Stevens told me, with typical understatement. ''I don't know if I'm entitled to the credit or Tony's entitled to the credit, because he wrote an exceptional opinion.'' In other cases, Stevens has written the majority opinion himself in an effort to shore up Kennedy's vote. In April, for example, in a 5-to-4 case, the court allowed a lawsuit to proceed against the Environmental Protection Agency for its refusal to regulate global warming under the Clean Air Act; by citing several of Kennedy's previous opinions in his own opinion, Stevens persuaded Kennedy to stay in the liberal camp.

The story notes that Stevens has not been as successful in persuading Kennedy on cases related to abortion, which Stevens views as a personal issue between the woman, her doctor and her family (paraphrasing from the story on my part). Stevens called the so-called “partial birth” abortion ban “a silly statute” and called Kennedy’s rhetoric about the need to protect women from the emotional trauma of abortion “frustrating.”

Stevens was born on April 20, 1920 and grew up in Chicago, noting…

''I had a very happy childhood,'' Stevens told (Rosen) with a faraway look in his eyes. But events took a darker turn in 1934, when the Stevens Hotel (built by his father) went bankrupt in the Great Depression, and Stevens's father, grandfather (who founded the Illinois Life Insurance Company) and uncle were indicted for diverting money from (Illinois Life) to make interest payments on bonds for the hotel. Stevens's uncle committed suicide, and his father was convicted in 1934 of embezzling $1.3 million. ''A totally unjust conviction, I can assure you,'' Stevens told me with passion. Indeed, later that same year, the Illinois Supreme Court overturned the conviction. ''There is not a scintilla of evidence of any concealment or fraud attempted,'' the court noted.

I asked Stevens whether seeing his father unjustly convicted influenced his views on the Supreme Court. ''I'm sure it did,'' he replied. ''You can't forget about that.'' Stevens said the experience had taught him a ''very important lesson'': namely, ''that the criminal justice system can misfire sometimes'' because ''it seriously misfired in that case.'' As a Supreme Court justice, Stevens seems to have kept this lesson firmly in view. In criminal-justice cases from 1995 to 2001, according to numbers compiled by Christopher E. Smith of the School of Criminal Justice at Michigan State University, of all the justices on the court, Stevens took the most expansive view of individual rights, voting against the government 69.7 percent of the time. (The next most liberal justices were Ginsburg at 60 percent, Souter at 57.6 percent and Breyer at 54.9 percent.)

After graduating Phi Beta Kappa from the University of Chicago in 1941, Rosen writes, Stevens enlisted in the Navy on Dec. 6, 1941, hours before the Pearl Harbor attack. He later won a bronze star for his service as a cryptographer, after he helped break the code that informed American officials that Adm. Isoroku Yamamoto, the commander of the Japanese Navy and architect of the Pearl Harbor attack, was about to travel to the front. Based on the code-breaking of Stevens and others, U.S. pilots, on Roosevelt's orders, shot down Yamamoto's plane in April 1943.

He returned from the war and enrolled in law school, and after graduating from Northwestern University Law in 1947 with the highest grade point average in the history of the school, he won a Supreme Court clerkship with Justice Wiley Rutledge, a liberal New Dealer and former law school dean appointed by FDR. After serving in this role, he became an antitrust lawyer in Chicago some years later in 1969, and that year, was appointed to investigate a political scandal on the Illinois Supreme Court, an investigation that made his professional reputation, Rosen tells us.

There are a few different reasons why Stevens has maintained his streak of individualism in his opinions, primarily his dissents (which, unfortunately, may be more frequent with The Supremes under Hangin’ Judge J.R.).

One is his experience with a third Illinois Supreme Court justice not under indictment in 1969 who wrote a dissenting opinion in the case that led to the resignations of the other two justices under investigation; the dissent wasn’t published to maintain “collegiality” such as the type Chief Justice Roberts said he wanted when he was confirmed. Another could be the experience serving our country and fighting corruption that other justices on the bench don’t have. A third could be remembrance of the wrongs against his family while growing up. With all of this to consider, though…

…Stevens went on to suggest, ever since he joined the Supreme Court, he has written more dissenting and separate concurring opinions than any of his colleagues. And his experience with the (Illinois Supreme Court) Commission of 1969 has made him even more skeptical of Chief Justice Roberts's idea that unanimity is in itself a desirable goal. Ever since the early 19th century, there has been a vigorous debate about whether the Supreme Court and other appellate courts are best served by consensus or transparency -- by unanimous opinions written by the chief justice, which was John Marshall's view, or by separate opinions in which individual justices make their disagreements clear, which was the view of Marshall's distant cousin and archrival, Thomas Jefferson. Roberts has explicitly embraced Marshall's vision. Stevens, however, takes the Jeffersonian view. ''I don't believe in suppressing dissent,'' he told me. ''If you disagree you should say so. . . . I just feel I have an obligation to expose my views to the public.''

Stevens's work on the Commission of 1969 brought him to the attention of Senator Charles Percy of Illinois, a moderate Republican who had decided to promote merit appointments to the federal bench instead of political cronies or ideologues. On Percy's recommendation, President Nixon appointed Stevens to the U.S. Court of Appeals in Chicago in 1970. And five years later, when President Ford was looking for a replacement for Justice William O. Douglas, a liberal icon, in the wake of the Watergate scandal, he, too, decided to emphasize merit and competence over ideology or cronyism. Rejecting the advice of Barry Goldwater, who urged him to appoint the archconservative Robert Bork, and of his wife, Betty, who urged him to choose a woman, Ford chose Stevens as ''the finest legal mind I could find.'' The Senate enthusiastically agreed, by a vote of 98 to 0.

As a sign of how significantly the Republican Party has changed since 1975, President Ford, until the end of his life, embraced Stevens's jurisprudence even as a younger generation of Republicans was denouncing it. In a warm tribute to Stevens in 2005, Ford wrote, ''I endorse his constitutional views on the secular character of the Establishment Clause and the Free Exercise Clause, on securing procedural safeguards in criminal cases and on the constitution's broad grant of regulatory authority to Congress.'' I asked Stevens what he thought of Ford's letter. ''It was amazing to see that,'' Stevens said, grinning like a proud schoolboy. ''I was delighted, as I'm sure you understand.''

That Gerry Ford managed to know a thing or two, I’ll give him that much.

And in closing, Rosen noted this…

Near the end of my interview with Stevens, as I started to leave his chambers, he almost shyly suggested that I might want to consult some of the opinions he wrote on the U.S. Court of Appeals in Chicago, before he joined the Supreme Court. I should be sure, he said, to look up a case from 1970, in which his colleagues, at the request of an incumbent U.S. senator from Indiana, stopped a recount in a close election on the grounds that it might compromise the integrity of the ballots. Stevens dissented, insisting that the recount procedures were perfectly fair and that the state judges should be trusted to handle the litigation honestly, without having their impartiality questioned by interference from federal courts. I asked Stevens why the decision was important. ''Because,'' he said, his eyes flashing, ''I had it very much in mind when I wrote Bush against Gore.''

And I thought it was a bit curious that Rosen really didn’t devote a lot of time to what Stevens had to say about that electoral fiasco in December 2000, for which we are still trying to cope with the outcome (Stevens, David Souter, Stephen Breyer, and Ruth Bader Ginsburg bitterly contested the Court’s decision to stop Florida’s hand recount of the votes).

This is what Stevens said – it spoke volumes then and continues to do so now…

"Although we may never know with complete certainty the identity of the winner of this year's Presidential election, the identity of the loser is perfectly clear. It is the Nation's confidence in the judge as an impartial guardian of the rule of law."

And thus began the downward spiral that may end up taking us to God knows where before the Bushco cabal departs (a day that, hopefully, Stevens will see along with the rest of us).

Update 4/22/08: I thought this was interesting.