Tuesday, August 18, 2009

Through The Legal Looking Glass--The Nine Gray Eminences

Associate Justice John Paul Stevens was born in Chicago, Illinois, on April 20, 1920. I chose this Justice to discuss for a reason scientifically similar to the previous one. With Justice Kennedy, I share a birthday. With Justice Stevens, I share a birthplace. Both of us managed to leave our place of birth without incurring a criminal record. Other than that, we have nothing in common.

Well, actually we have a couple of other things in common. We both have legal and judicial backgrounds, and until I was struck by lightning in the 80s and became a conservative, he and I shared an activist judicial philosophy. Interesting factoid--he is the only current sitting Justice to have served with three different Chief Justices, Burger, Rehnquist and Roberts.

Justice Stevens was appointed by Republican Gerald Ford, who unlike Eisenhower with the Warren surprise, knew very well that Stevens had a very liberal, activist judicial philosophy. The appointment may be attributed to the thinking of Ford, whom Barry Goldwater once described as having "played football too often without a helmet."

He is the longest-serving Justice on the current Supreme Court, the oldest, and if he can keep breathing will become the longest-seated Justice of the Supreme Court in history if he can make it to the fall court term in 2012. At that point, he will have outserved the former record-holder, William O. Douglas, whom Stevens replaced. He is currently in seventh place, but at the end of the fall term, he will have leapfrogged over three other former Justices to get a firm grip on third place in longevity. At eighty-nine years of age, the record seems unreachable, but he is in amazingly good health, clear-minded, and he might just decide he wants that record and stick around for another three years.

Stevens attended school in Chicago, and received his BA in English from the University of Chicago in 1941. He started on his Masters Degree in the same year, but enlisted in the US Navy after Pearl Harbor. He served honorably and well. He became an intelligence officer, and he was part of the team that broke the Japanese military code leading to the shooting-down of the plane carrying Japanese Admiral Yamamoto in 1943. He married Elizabeth Sheen in 1942, whom he divorced in 1979. He re-married that December, thus once again following in the footsteps of William O. Douglas, who also had a tendency to marry younger women.

Two of Stevens's brothers had become lawyers, and though Stevens himself wished to return to his English studies, they convinced him to attend law school at nearby Northwestern University instead. He earned a J.D., which at the time (1947) was a more extensive degree than the more common LL.B. The J.D. granted an additonal academic standing which was a boot up on teaching law. He graduated summa cum laude, with the highest grade point average in the history of the law school up to that time.

Stevens never actually taught law in his younger days, however. But his legal career was indeed stellar. Having won the complete respect of the university law school faculty, he was recommended to the U.S. Supreme Court Clerk's office, and immediately appointed clerk for Justice Wiley Rutledge. After finishing his service, he returned to Chicago to join a major antitrust law firm upon his admission to the Illinois Bar in 1949. After being docked a day's pay by the law firm for going to his admission swearing-in, he left and formed his own law firm. In 1951, he was called to serve as Associate Counsel to the House Subcommittee on Monopoly Power within the House Judiciary committee. In 1952, he returned home, and formed a new law firm, with himself as the lead counsel in all antitrust matters.

Known for both his honesty and his extreme intellectual and litigation abilities, he was appointed in 1969 to head the Greenberg Commission which investigated the corruption charges against two Illinois Supreme Court Chief Justices (now there's a surprise--corrupt Chicago judges). Though the investigation was expected to be a hand-slapping exercise at best, Stevens ignored expectations, and in the end, both Justices were censured, and the one who remained on the Court was forced from the bench. Running as a reformer, he was elected Second Vice-President of the Chicago Bar Association in 1970.

His activities brought the attention of the national legal community, and in 1970, President Richard Nixon appointed Stevens as a Judge in the Seventh District Court of Appeals jurisdiction. Stevens tenure on the bench was characterized by extremely intellectual argument, solid judicial temperament, and strong support for Warren-type creation of new law. He had also exhibited an anti-business reputation, probably stemming from his lengthy experience as an antitrust lawyer. Whatever my personal disagreements may be with Justice Stevens's philosophy regarding judicial activism, I cannot fault any of his decisions for lack of intelligence, sound law, or excellent reasoning.

President Ford nominated Stevens to the Supreme Court in July of 1975, and after a fairly perfunctory investigation, he received a unanimous favorable vote from the Judiciary Committee, and got a 98-0 vote in the full Senate. He took his seat on the high bench in on December 19. Stevens has a strong sense of advocacy for "flexibility" in the law, and preaches the importance of treating each case carefully and independently with a complete review of the facts and evidence in each case.

As much as the latter trait sounds good to the average person, and as important as it is at every level through the final appeal at the other appellate levels, it is not necessarily a good trait in a Justice who sits on the Court which establishes broad principles of law on which the lower nine circuits must rely. By concentrating on specific facts in every case, the Supreme Court creates far too many options for the lower Courts who must now review facts to match each case to a Supreme Court case rather than reviewing the facts according to a broad principle annunciated by the high court.

On the other hand, Justices of the Supreme Court must also determine that the facts at the lower levels have actually been reviewed. Thus, Stevens joined in the unanimous finding of the Supreme Court that new Justice Sonia Sotomayor failed in her duty as an appellate judge in the Ricci v. New Haven case by failing to review the evidence and testimony at the district court (there wasn't any referenced by the judge in the district court--it was a summary judgment). Nevertheless, case-by-case analysis at the Supreme Court level tends to lead to confusing contradictions (Stevens has been on both sides of the affirmative action issue, including Ricci, because of his quibbling over minor details which might distinguish it from very similar cases).

Stevens's judicial activism, as I have discussed above, is not doctrinaire in the manner of a Justice Souter, Justice Breyer, Justice Ginsburg or a Chief Justice Warren. It relates more to his nitpicking over facts of each individual case. When the facts precisely fit a prior case, he will appear to be conservative. But if one small and barely relevant fact differs, he will diverge completely from precedent and the general principle which previously guided this type of case. This leads to inconsistency of opinion on the Court itself, and a willingness to make all-new law at the appellate level with ultraliberal lower court judges and justices hoping that this case will somehow fit into Stevens's personal view of contrary facts. Flexibility is one thing, inconsistency quite another.

Stevens has added to the confusion by writing an opinion in nearly every case he hears. As the senior Justice on the Court, he is the administrative head of the Court in the absence of the Chief Justice, and is also entitled to write any minority opinion if he is a part of that minority. Occasionally, even that is not sufficient for his tastes so he frequently writes separate concurring or dissenting opinions.

Rather than go through each case he has participated in at the appellate and Supreme Court level, I will sum them up by category for the purpose of illustrating his judicial philosophy of the "case by case" approach.

Freedom of Religion: Although admitting a willingness to allow public displays of religion on public property, he has looked with strict scrutiny on cases involving the issue, and tends to come down on the the side of prohibition. In Wallace v. Jaffrey he wrote the majority opinion striking down Alabama's statute mandating a minute of silence in public school for prayer or meditation. Yet in an earlier appellate decision, he had gone the opposite direction saying that nobody is forced to do anything more than be silent, that nobody was forced to pray, and that there was no state promotion of religion. The difference? Minor facts. Because the Alabama statute was mandatory, and the Illinois statute he ruled on earlier was permissive, he found that the former created a minimal state intrusion on religious freedom which could not be overcome by tradition. In fact, neither statute required any religious participation of any kind.

Search and Seizure: Stevens wrote the majority opinion in Arizona v. Gant which seriously circumscribed the ability of police to conduct searches of vehicles. He held that a search of a vehicle incident to a lawful arrest is allowed only if the arrestee is within reaching distance of the compartment at the time of the search, or it is reasonable to believe the vehicle contains evidence of the offense of arrest." Think of it this way. If a driver is stopped on an outstanding warrant for grand theft, it would now not be reasonable to search his vehicle for a gun, which had previously been allowed for protection of the arresting officers. On the other hand, he wrote the majority opinion in U.S. v. Ross, which permits an officer to search closed containers found in the course of searching a vehicle, even though no danger was presented and the container could just as easily been searched after obtaining a warrant. The difference? Minor facts which caused the Justice to err on the side of allowing police to face a genuine danger from weapons, and yet to err on the side of loose police procedures which in no way protect the arresting officers' safety.

The Death Penalty: Stevens joined the majority in Gregg v. Georgia which reinstated the death penalty overruling Furman v. Georgia which had prohibited it. Yet he argued later that the death penalty was becoming "ever more anachronistic" and has voted to prohibit the death penalty in nearly every case in which he has since participated. The difference? The facts. He has voted against the death penalty for those under age eighteen or who have mental defects. He has voted against the penalty being used in any criminal prosecution other than first degree murder with special circumstances. Yet even after declaring that he thought lethal injection was barbaric, he voted to uphold the death penalty which utilizes lethal injection because of "stare decisis."

His decisions on the First Amendment as to freedom of speech, the Commerce Clause, delegation of legislative and executive power, and voting rights have been equally quixotic. And once again, in one of his most famous and scathing dissents, he led the minority in the case of Bush v. Gore. Once again, he ignored the basic concept of applying the general principle of interfering in state decisions only when no purely Constitutional issue is involved, and instead went into a lengthy analysis of disputed facts and concluded that the Florida Court should have been the final determiner of the rules of the election since it would be able to "make the critical decisions if the vote count were to proceed."

He therefore completely missed the more general principle that courts are not supposed to write their own legislation, and Florida law clearly provided that the "drop-dead" date was a decision to be made solely by the Florida Secretary of State. By dissenting on the "fact" of Florida's Supreme Court ability to judge the facts, he completely ignored the state law forbidding the Supreme Court to referee the counting of votes after the Secretary of State had declared that the "drop dead" date for counting votes had passed. Normally a strong advocate of preferring federal power over state's rights, in this case he found a pseudo-fact which would support his favoring a bad State Court decision over clear Constitutional precedent.


My guess as to how Stevens will affect the new Court is that he will remain on the side of the liberals and activists on the Court, but is far more likely to be an influence on the doctrinaire activist Sotomayor than she will ever be on him. Although he was part of the unanimous Court chiding Sotomayor for her failure to review evidence in the Ricci case, he also led the minority in stating that after reviewing the evidence they found no evidence of discrimination. Sadly, it is likely that Stevens will teach Sotomayor how to make her partisan positions look palatable by using factual arguments to distinguish minority vs. majority cases from majority vs. minority cases, as opposed to viewing the cases from a broader constitutional principles perspective.

Both Stevens and Sotomayor, along with Kennedy, will continue to muddy constitutional waters for the lower courts by endlessly analyzing minute facts on a case by case basis without establishing any rules to guide those lower courts in their rulings. With Ginsburg and Breyer ruling on strictly broad, activist, "living Constitution" principles, the Court will remain four liberals, four conservatives, and Kennedy as the swing who makes his decision using the case by case factual analysis method.

11 comments:

Writer X said...

I'm not sure if Justice Stevens embodies the view: with age, comes wisdom. Manipulating facts (or grey area) to make a point is nothing to be proud of.

AndrewPrice said...

Stevens is one of the justices I have no respect for. I don't think he follows a judicial philosophy so much as he looks at each case and comes down the way he thinks is fair. That's not his role, and it's led to many strange and confusing cases.

StanH said...

Stevens strikes me as the classic example of an inside the beltway hack. Sticks his finger in the wind and tra-la… we have a living Constitution and laws being created from the bench. I view The Constitution as contract left us by our Founders, and we must preserve and protect even if our political class will not. Great read Lawhawk, but disappointing at the same time.

LawHawkSF said...

WriterX: He doesn't so much manipulate facts as worry them to death. That's the role of the trial courts. By the time a case makes its way to the Supreme Court, it should mean that those settled facts have raised a Constitutional issue to be determined in a manner to guide the lower courts in the future. His analysis is so nitpicky that there's absolutely no way to be sure what the case is ultimately going to stand for.

LawHawkSF said...

Andrew: That is so true. I'd settle for him having a liberal judicial philosophy rather than none at all. At least it would preserve uniformity of opinion.

StanH: He's not so much a hack as a professor who should have stayed in the classroom where he couldn't do any permanent harm. By treating each case individually to illustrate a point (the way a good law school instructor should in order to teach future lawyers legal analysis) he educates, but he doesn't enlighten.

So now, having said that, let me play law school instructor for a minute to illustrate what I mean.

Most Americans are quite familiar with the landmark case of Brown v. Board of Education of Topeka, Kansas. It was a much more complicated matter than it appears on the surface, but when it comes to racial segregation, nobody could possibly misunderstand the broad legal principle it established after reviewing the facts, the case law, and the Constitution. School children can provide you with that principle, and it doesn't require a brilliant, experienced attorney to understand it.

"Separate is inherently unequal. There's no way to interpret that principle that doesn't torture its clear meaning.

But what if Stevens had been on the Court and written the majority opinion?

"The School District of Topeka, Kansas has wrongfully and in violation of the Fourteenth Amendment denied the right of Negroes (remember, this was 1954) to attend school with Caucasian students. A full analysis of the facts in the case have led us to conclude that Topeka has created separate and unequal Negro schools with twenty students per classroom instead of the fifteen in Caucasian schools; with one bathroom for every fifty Negro students instead of the one bathroom for every forty-five for Caucasian students; and an average travel distance to their respective schools of one mile for Negro students, but only .97 miles for Caucasian students. We therefore order that Topeka, Kansas remedy this unconstitutional use of its schools forthwith." This is a unanimous opinion.

Under the principle set forth by the Stevens Court, Kansas could comply by integrating. But does it have to? Look at the facts (remember, that's how Stevens analyzes cases to death). The Topeka school board could simply add bathrooms, classrooms, and provide easier transportation for the African-American students and remain fully segregated. Even easier, it could just reverse the schools, sending the African-American students to the formerly White schools and vice versa.

By deciding the case purely on facts, and leaving the door open to a Constitutional interpretation of segregation which still allows it, the Stevens Court has failed in its basic mission: to announce a general guiding Constitutional principle which would end segregation once and for all. By stating a principle which merely defines the facts that have determined the inequality, it has also provided the non-integration solution. In other words, by deciding the case based on an analysis of the facts instead of the broad constitutional principle which was truly at issue, the Steven Court has perpetuated racial segregation for decades to come.

Writer X said...

LawHawk, he sounds like a peach. Sometimes I wonder about people who nitpick. It's almost as if they're trying to hide a deficiency. Anyway, I don't doubt that the guy is smart but he appears to lack common sense and/or he has an agenda. Or both.

LawHawkSF said...

WriterX: I guess the appropriate quote for Stevens is: "The perfect is the enemy of the good." It's what the jive psychologists call "analysis paralysis."

Tennessee Jed said...

That was written with your usual class. Justice Stevens seems to have all the chops to be a good member of "The Supremes." Unfortunately, he is on the wrong side of the ideological divide. I guess the only defense of some of those picks was that there was a liberal congress in place, and as you point out, Ford was perhaps not the sharpest tool in the shed. Not only that, he was not elected, and he was not particularly conservative either.

StanH said...

As you say analysis paralysis best describes Justice Stevens, and like Souter and Kennedy though appointed by Republicans lean left, less Kennedy as you pointed out in your earlier essay. Perhaps some poetic justice maybe one of Barry’s appointees will lean right?

LawHawkSF said...

Tennessee: Thank you, kind sir. Stevens may very well be the smartest Justice on the Court. He would have made a fantastic law professor. And he was a top-notch lawyer. But as a Supreme Court Justice, he's a sad story. How many angels can dance on the head of a legal pin is a great intellectual exercise, but it doesn't help lower courts looking for guidance.

StanH: I hope you're not holding your breath for an Obama appointee to turn right, but there's always hope. Sotomayor's desperate need to be considered an intellectual may actually have an effect if Roberts and Thomas are free to mentor her without the influence of Souter. But Stevens can be a formidable framer of legal arguments. Sotomayor's love of "results-oriented" law, and Stevens's love of case by case review based solely on fact situations could be a deadly brew. Don't forget that on the facts alone, Stevens found the Ricci outcome in the lower courts to be correct, even after chiding Sotomayor for her failure to review those facts.

LawHawkSF said...

WEDNESDAY UPDATE: For those who might still be interested, the Supreme Court just handed down a death penalty decision. As so often happens, Stevens wrote a concurring opinion which is all over the place, consistent with his "case by case, evidence and testimony" approach.

Quick summary: Troy Davis was found guilty of capital murder and sentenced to death twenty years ago in Georgia for murdering a police officer. As usual, the death penalty's effectiveness was blunted by years of appeals. Finally, after the passage of time, some of the witnesses have recanted their testimony (as happens in nearly every felony case). Every appellate court at the state and federal level found his appeals insufficient. Facing the final few weeks before execution, Davis filed a habeas corpus petition with the Supreme Court. And things went south. The Court made an almost completely-unprecedented decision. After once again beating the facts to death, with Justice Stevens leading the way, the Court did not determine that the state courts, the Georgia Parole and Sentencing Board and the District Court of Appeals were entirely wrong in upholding the death penalty.

So instead of the two choices normally picked from, the Court chose a third way. They didn't reverse, and they didn't uphold (the normal two choices for keeping the law uniform and predictable). Instead, they remanded the case to the state court for further review by the Parole Board and a decision by the trial court (thus starting the trial and appellate process all over again).

As you all know, the prosecution must prove its case by proof beyond a reasonable doubt. Evidence showed that the state court had applied the proper standard, the evidence and testimony proved the crime, and the federal court upheld the conviction after a similar review of the evidence and testimony.

The Supreme Court also found no grounds for reversing the case on the evidence and testimony presented at the time of trial and every parole/sentencing hearing thereafter, except the last one. But that wasn't enough for Stevens. He allowed the convicted man's most recent attempt to prove by clear and convincing evidence that he did not commit the crime to enter the record.

So without reversing a conviction obtained by proof beyond a reasonable doubt, Steven convinced six other Justices to remand based on new allegations that the convicted murderer might be able to prove he didn't commit the crime with a showing of clear and convincing evidence, a much lower standard.

Justice Scalia said in his dissenting opinion: "The high court is ordering a hearing 'that is a fool's errand' because Davis's claim is a 'sure loser.'" Justice Thomas joined in the vigorous dissent.

Once again, Stevens's obsession with case by case review based on evidence (which didn't change) and witness testimony (some, but not all, of which did change) has muddied the waters of judicial clarity. Every savvy defense attorney now knows what to do if his death penalty client wants another twenty or thirty years of appeals. Murderers convicted of first degree murder by proof beyond a reasonable doubt will now be more likely to die of old age than a lethal injection.

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