{"id":16282,"date":"2012-01-16T17:51:02","date_gmt":"2012-01-16T22:51:02","guid":{"rendered":"http:\/\/law.marquette.edu\/facultyblog\/?p=16282"},"modified":"2012-01-16T17:51:02","modified_gmt":"2012-01-16T22:51:02","slug":"john-paul-stevens-restraint","status":"publish","type":"post","link":"https:\/\/law.marquette.edu\/facultyblog\/2012\/01\/john-paul-stevens-restraint\/","title":{"rendered":"John Paul Stevens’ Restraint"},"content":{"rendered":"

\"\"<\/a>After he retired in 2010, John Paul Stevens published Five Chiefs: A Supreme Court Memoir<\/a><\/em>.\u00a0 After a brief description of the first twelve Chief Justices of the United States Supreme Court, from John Jay through Harlan Fiske Stone, he describes in more detail the last five with whom he was professionally acquainted.\u00a0 Stevens clerked for Wiley Rutledge, after earning the highest GPA in the history of Northwestern Law School, during the 1947 \u2013 48 Term when Fred Vinson was Chief Justice.\u00a0 Stevens was in private practice in Chicago, sometimes teaching antitrust law at the University of Chicago, when Earl Warren presided over the Court.\u00a0 It was during this time, however, that he argued his only case before the Court.\u00a0 In Five Chiefs<\/em>, he notes that the most memorable aspect of his experience as an advocate before the Court was the sheer proximity of the Justices.\u00a0 Though the distance between the lawyer and the bench is over six feet, Stevens felt sure that \u201cChief Justice Warren could have shaken my hand had he wished.\u201d<\/p>\n

Details like this provide an inside glimpse of the Court.\u00a0 Early in his account, Stevens describes how the prohibition against playing basketball in the gym directly above the courtroom occurred during Vinson\u2019s tenure: Byron White, one of Vinson\u2019s first clerks and a former All-American, was practicing layups during oral argument.\u00a0 Stevens\u2019 anecdotes are always respectful of their subjects and strike one as rather tame, at least until one realizes that civility, the ability to \u201cdisagree without being disagreeable,\u201d is of the utmost importance to him.\u00a0 Stevens sat beside Antonin Scalia for much of his time on the Court and was the \u201cbeneficiary of [Scalia\u2019s] wonderfully spontaneous sense of humor.\u201d\u00a0 The year Scalia was appointed, they heard two cases involving police questioning of rather unsophisticated suspects.\u00a0 (Stevens does not identify the cases by name, another instance of his tact, but they are readily identifiable from his brief description of the facts as Colorado v. Spring<\/em> and Connecticut v. Barrett<\/em>, both decided in 1987).\u00a0 Scalia apparently leaned over and whispered to Stevens that it must be \u201cdumb defendant day.\u201d\u00a0 Now, anyone who has read a Scalia opinion knows that this cannot be the apogee of his wit and can be fairly certain that, in their twenty-four years on the bench together, he made sharper comments in the course of their duties.<\/p>\n

One gets the sense that Stevens is reluctant to write anything that might reflect poorly on the Court or its Justices.\u00a0 And it is perfectly understandable that he would be unwilling to besmirch the institution with idle gossip.\u00a0 The Court is both a vital force and symbol of American democracy and, in the words of his dissent in Texas v. Johnson<\/em> (1989), where the majority held that burning an American flag at a demonstration was protected by the First Amendment, it is \u201cworthy of protection from unnecessary desecration.\u201d<\/p>\n

Nevertheless, Stevens does not shy away from criticizing his colleagues and even President Reagan when their decisions diverge from his closely held principles.\u00a0 Though he found common ground with Chief Justice Rehnquist on issues involving separation of powers, Stevens was sharply critical of Rehnquist\u2019s stance on state sovereign immunity, particularly in Seminole Tribe of Florida v. Florida <\/em>(1996).\u00a0 \u201cLike the gold stripes on his robe, Chief Justice Rehnquist\u2019s writing about sovereignty was ostentatious and more reflective of the ancient British monarchy than our modern republic.\u201d\u00a0 Invariably, however, Stevens\u2019 criticisms are based on what he considers to be flawed reasoning and not personal animus.\u00a0 His disapproval of Rehnquist\u2019s decision to adorn his robe with gold stripes does not detract from his admiration for Rehnquist\u2019s other fine qualities: his impartiality in both private conference and open court and his efficient administration of the Court\u2019s business.<\/p>\n

Stevens\u2019 evaluation of the current Chief Justice, John Roberts, is very favorable.\u00a0 He describes him as \u201ca better presiding officer than both of his immediate predecessors\u201d as well as a more skilled representative of the Court in non-judicial settings.\u00a0 He is particularly appreciative of Roberts\u2019 concurrence in Graham v. Florida<\/em> (2010) because it represents for him a rejection of the interpretive approach that looks at the \u201coriginal intent\u201d of the Framers in determining the constitutionality of a given case.\u00a0 In Graham<\/em>, Roberts agreed with the majority that imposing a life sentence on a juvenile defendant for a non-homicide offense violated the Eighth Amendment but rejected a categorical bar to such a sentence on the grounds that courts should weigh factors like the offender\u2019s age and criminal conduct on a case-by-case basis.\u00a0 Roberts recognized a proportionality requirement at variance with Scalia\u2019s dissenting opinion in Harmelin v. Michigan<\/em> (1991) that would prohibit certain, specific punishments under the Eight Amendment but would not require, in Stevens\u2019 words, \u201cthat the punishment fit the crime.\u201d<\/p>\n

Stevens\u2019 discussion of <\/em>Roberts\u2019 opinion in Graham<\/em> highlights two themes of his own judicial philosophy.\u00a0 According to Stevens, judges and justices should exercise restraint, and decide only what a case \u201cactually presented\u201d without trying \u201cto craft an all-encompassing rule for the future.\u201d\u00a0 Kyllo v. United States<\/em> (2001) (dissenting).\u00a0 This, of course, stems in part from his understanding of the separation of powers in our system of government.\u00a0 As he wrote in Kyllo<\/em>, Congress is the branch that \u201cgrapple[s] with. . . emerging issues\u201d and it is counterproductive to \u201cshackle them with prematurely devised constitutional constraints.\u201d<\/p>\n

Secondly, Stevens disagrees with an uncompromising insistence on the specific intent of the Framers because it does a disservice to the emerging problems of a changing society.\u00a0 Which is not to say the principles enshrined in the Constitution are readily susceptible to modification; if they were they would not be principles.\u00a0 Rather, it is that the strength of the principles lies in their flexibility and not in a code-like rigidity.\u00a0 Stevens quotes Justice McKenna in Weems v. United States<\/em> (1910), \u201c[A] principle, to be vital, must be capable of wider application than the mischief which gave it birth.\u201d<\/p>\n

These two aspects of Stevens\u2019 jurisprudence help explain what comes across in his memoir: a reticence that displays itself in distaste for superfluous gossip on the one hand, and a generosity of spirit capable of disagreement without rancor on the other.\u00a0 Towards the end of Five Chiefs<\/em>, Stevens writes that he has \u201cno memory of any member of the Court raising his or her voice.\u201d\u00a0 Whether this is strictly true, and as far as it is his memory there is no reason to doubt that it is, it sheds light on how Stevens envisioned the work of the Court as a civil pursuit for justice.<\/p>\n","protected":false},"excerpt":{"rendered":"

After he retired in 2010, John Paul Stevens published Five Chiefs: A Supreme Court Memoir.\u00a0 After a brief description of the first twelve Chief Justices of the United States Supreme Court, from John Jay through Harlan Fiske Stone, he describes in more detail the last five with whom he was professionally acquainted.\u00a0 Stevens clerked for 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