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.