Five Chiefs

by John Paul Stevens

  Despite my respect for Bill Rehnquist’s efficiency as chief, I hope that some of his opinions for the Court will one day be well described by Lincoln’s modest phrase. His death-penalty jurisprudence, for example, is consistent with his frank admiration of Judge Isaac Parker. Parker served as the district judge for the Western District of Arkansas from 1875 until 1896 and became known as the hanging judge because he sentenced 160 defendants to death. Bill quoted from a biography of Parker in an unusual opinion dissenting from the Court’s denial of certiorari in a Georgia capital case.

  That case featured a defendant who, on direct appeal and in a state postconviction proceeding, argued that pre-trial publicity had created an atmosphere that made it impossible for him to have a fair trial. Justices Brennan and Marshall voted to hear the case because they thought the claim had merit. Bill joined them in seeking to hear the petition, but for a quite different reason: he wanted to establish a special procedure that would conclude capital cases as promptly as possible. He therefore argued that the Court should take the case and decide the federal questions even before the federal district court or the federal court of appeals had an opportunity to do so. His position, if adopted by the Court, would have multiplied the number of capital cases heard on the merits each term.

  Bill’s remarkably consistent pattern of voting to uphold death sentences coupled with his opinion in Payne v. Tennessee provide a fair reflection of his contribution to this area of the law. Payne was published on June 27, 1991, the last day of the October 1990 term and the day when Thurgood Marshall announced his retirement. In Payne, the Court held that the prosecution could produce “victim impact evidence” to support its request for the death penalty. In earlier cases, our jurisprudence had required that any decision to impose the death penalty be based solely on evidence informing the jury about the character of the offense or the character of the defendant. Evidence that serves no purpose other than to appeal to the sympathies and emotions of the jury had never been considered admissible. Indeed, in two cases decided only a few years earlier—before Justices Brennan and Powell retired—we had squarely held that the admission of victim impact evidence was impermissible. I vividly remember Justice Marshall’s outraged reaction to the majority’s decision to overrule those recent cases. He, of course, had been a great trial lawyer (as had Lewis Powell, who authored one of the two overruled opinions) and so was particularly well qualified to evaluate the significance of such evidentiary rulings. My reaction to that abysmal Payne decision remains every bit as hostile today as Thurgood’s was when it was announced.

  Thurgood’s retirement may well have been the most significant judicial event of Bill Rehnquist’s tenure as chief justice. When I reflect on its importance, I think first about my memories of his contributions to our conferences and his personal friendship, and second about the changes in the Court’s jurisprudence that are attributable to his successor, Clarence Thomas.

  Thurgood had, of course, earned national fame and admiration for his work as an appellate lawyer. He had presented the oral argument and been in charge of the briefing in Brown v. Board of Education and had served as solicitor general of the United States; his appellate expertise was unmatched. In our conferences, however, it was his experience as a trial lawyer in hostile southern communities—buttressed by his son John’s more recent experiences as a Virginia state police officer—that most frequently provided the source of his perceptive and original contributions to our debates. Moreover, he had a seemingly inexhaustible inventory of jokes and humorous anecdotes that he shared with us. Most notably, and I am still amazed by this fact, he never told us the same story twice.

  As a celebration of Thurgood’s eightieth birthday, Bill and Lovida Coleman hosted a dinner in his honor at their home in McLean, Virginia. I assumed that Maryan and I had been invited to that dinner because my friendship with Bill dated back so many years—he had served as a law clerk for Felix Frankfurter the year after I clerked for Wiley Rutledge and had gone on to a distinguished legal career that included serving as secretary of transportation under President Gerald Ford. I learned later, however, that the dinner had been planned by several of the lawyers who had played an important role in the fight to end segregation in the South and that Thurgood was the sole arbiter of the guest list. That bit of after-acquired information made Maryan and me especially proud of our attendance at a memorable and enjoyable social event.

  The importance of the change in the Court’s jurisprudence that is directly attributable to the choice of Clarence Thomas to fill the vacancy created by Thurgood’s retirement cannot be overstated. I discuss one example of Clarence’s impact—his writings on the Eighth Amendment—toward the end of this book. More generally, decisions made by five-to-four votes in which Clarence was a member of the majority are evidence of that importance because I am convinced that Thurgood would have voted with the four dissenters in most, if not all, of them. While Thurgood’s jurisprudence reflected an understanding that the Constitution was drafted “to form a more perfect Union”—and thus to accommodate unforeseen changes in society—Justice Thomas’s repeated emphasis on historical analysis seems to assume that we should view the Union as perfect at the beginning and subject to improvement only by following the cumbersome process of amending the Constitution. Three five-to-four decisions in which Clarence provided the critical vote to invalidate federal gun control laws illustrate the point.

  In the first of those cases—United States v. Lopez (1995)—the majority held that the Gun-Free School Zones Act of 1990, which prohibited the knowing possession of firearms in school zones, exceeded the authority of Congress to regulate interstate commerce. Justice Thomas wrote a separate opinion in which he argued that much of the Court’s recent commerce clause jurisprudence was not faithful to the original intent of the framers. I am quite sure that Thurgood would have joined one or more of the dissenting opinions expressing the view that even if the interest in eliminating the market for possession of handguns by schoolchildren would not have justified federal legislation in 1789, it surely does today.

  This case has particular meaning for me because it touched upon my work as a clerk for Justice Rutledge. It was Justice Rutledge’s practice to write the first drafts of his opinions in longhand, but he allowed each of his clerks to prepare the first draft of one opinion for the Court. My assignment was to draft the opinion in a case called Mandeville Island Farms, Inc. v. American Crystal Sugar Co. (1948). The question in the case was whether an agreement among California sugar refiners to fix the prices that they paid to California farmers for locally grown sugar beets violated the Sherman Act.

  The draft that I gave to the justice succinctly stated that the per se rule against price fixing applied to buyers as well as sellers. As I remember the draft, it was about three or four typewritten pages. (A few sentences from that draft appear on pages 235 and 236 of an opinion in volume 334 of the U.S. Reports that is twenty-six pages long.) Justice Rutledge decided that it would be appropriate to explain why the Court’s miserly interpretation of the Sherman Act and the commerce clause in United States v. E. C. Knight Co.—a case decided in 1895—was no longer good law.

  In writing my draft, I assumed that there was no need to restate the basic propositions of doctrine that my classmates and I had been taught in law school. The distinction between manufacture and commerce on which the E. C. Knight Court had relied in defining the scope of Congress’s power under the commerce clause had been a relic of the past after the Court’s adoption of the rule of reason in the Standard Oil case in 1911 and its decision in the Shreveport Rate Cases in 1914. Justice Rutledge’s opinion cogently explained why.

  In the years following my clerkship, and indeed during the first nineteen years of my tenure on the Court, I continued to regard Justice Rutledge’s revision of my first draft as an unnecessary, though lucid and accurate, piece of scholarly writing on a topic that he had thoroughly mastered. In Lopez, however, Clarence provided me with evidence that Justic
e Rutledge’s thorough repudiation of the reasoning in the E. C. Knight case had been entirely appropriate. For in his concurring opinion in Lopez, Thomas unequivocally endorsed the reasoning in the E. C. Knight case. It is quite clear that were it up to him, Justice Thomas would not merely rewrite the only Court opinion that I had an opportunity to draft as a clerk but would overrule the case itself.

  The second case involving guns in which Clarence’s vote was decisive was Printz v. United States (1997). There, history, rather than constitutional text, provided the critical role in the majority’s decision to invalidate the provision in the Brady Handgun Violence Prevention Act that required local law enforcement officers to make background checks of prospective handgun purchasers during the period before a national system could be implemented. There was no doubt that the commerce clause provided ample authority for the federal statute, but the majority held that the provision violated a rule that they had previously announced prohibiting Congress from requiring state officers to perform federal duties. Two dissenting opinions—including my own—explained why the majority’s historical analysis was incorrect; I added this comment about why it was also profoundly unwise:

  Indeed, since the ultimate issue is one of power, we must consider its implications in times of national emergency. Matters such as the enlistment of air raid wardens, the administration of a military draft, the mass inoculation of children to forestall an epidemic, or perhaps the threat of an international terrorist, may require a national response before federal personnel can be made available to respond.

  I often wonder whether the tragic events of 9/11 have given members of the majority any second thoughts about the wisdom of their decision. I find it hard to believe that they would adhere to their flawed historical analysis today.

  The third case, in which debatable historic analysis again played a more important role than constitutional text, is District of Columbia v. Heller (2008). In that case a bare majority of the Court held that the Second Amendment protects the right of an individual to keep a handgun at home. In 1939, in the Miller case, a unanimous Court had held that the scope of the right protected by the amendment was delimited by its relationship to the preservation of a well-regulated militia. That holding was directly supported by the text of the amendment’s preamble stating that a well-regulated militia is necessary for the security of a free state.

  My firm conviction that Thurgood’s vote would have led to a different result in that case is supported by my recollection of his views on the matter and by his respect for the doctrine of stare decisis set forth in his dissenting opinion in Payne. Thurgood’s commendable faith in and respect for the decisions of his predecessors was not always evident in the decisions of his colleagues.

  One cannot underestimate the importance of changes caused by Court opinions authored by Rehnquist in a quite different area of the law: that governing the duty of the states to comply with federal law. That duty is defined in Article VI of the Constitution, which contains this paragraph:

  This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

  That duty had been succinctly and correctly described in 1936, when the Court rejected the State of California’s claim that its status as a sovereign state limited the power of Congress to regulate its commercial activities. As Chief Justice Harlan Stone wrote for a unanimous Court that included Justices Louis Brandeis and Benjamin Cardozo, “there is no such limitation upon the plenary power to regulate commerce. The state can no more deny the power if its exercise has been authorized by Congress than can an individual” (United States v. California).

  Forty years later, in his opinion for the five-justice majority in National League of Cities v. Usery (1976), then Justice Rehnquist confidently asserted that that statement was “simply wrong.” He thought it clear that when a state acts as a state in the conduct of governmental functions—in that case, by deciding how much to pay its employees—the federal power is not supreme. I was one of the four dissenters, and I later joined the opinion in Garcia v. San Antonio Metropolitan Transit Authority (1985) that overruled National League of Cities. It is now settled that the federal power over the labor market includes the power to prevent states from paying their employees substandard wages and discriminating against them for impermissible reasons. States, just like counties, cities, and individual citizens, have a duty to obey federal law. It thus was Justice Rehnquist, rather than Justice Stone, who was “simply wrong” in his evaluation of the state’s immunity from federal regulation under the commerce clause.

  But the Rehnquist understanding of the importance of state sovereign immunity retains its vitality in cases brought against states by private citizens alleging violations of their federal rights. It was his opinion in 1974 in Edelman v. Jordan—a case in which Illinois had failed to make payments that were required by the federal Social Security Act—that breathed new life into the Eleventh Amendment. As I have noted, that amendment was adopted in 1795 in response to the Supreme Court’s holding that a federal court had jurisdiction over a suit brought against the State of Georgia by two citizens of South Carolina (who happened to be executors of a British creditor). Neither the opinions in that case nor the text of the Eleventh Amendment, which merely protects states from suits brought by nonresident plaintiffs, had anything to say about suits brought to enforce federal rights.

  Before Justice Rehnquist wrote his Edelman opinion, most lawyers and federal judges assumed that the Court’s decision in Ex parte Young (1908) had eliminated the Eleventh Amendment as a possible defense to suits against states and state officials to enforce federal rights. Likely as a result, the Illinois officers who were the defendants in Edelman did not initially assert that the Eleventh Amendment barred the proceeding against them; indeed, they never even made that argument before the district court. Shortly before the Supreme Court heard arguments in Edelman, the Court summarily affirmed judgments against state officials in three similar cases. Nonetheless, while acknowledging that under Ex parte Young the Eleventh Amendment did not bar prospective relief, and despite having no textual basis for its action, the five-justice Edelman majority held that the amendment did bar any judicial order requiring the state to pay to the plaintiffs the amount of welfare benefits that had been wrongfully withheld from them. In the ensuing years, Rehnquist transformed his Edelman opinion into a font of authority with which to effect a sea change in the Court’s sovereign immunity doctrine. He thus relied on judicial interpretations rather than anything in the text of the Eleventh Amendment as authority for a series of opinions for five-justice majorities that invalidated numerous acts of Congress. During his tenure the Court invalidated forty-one federal statutes—an unprecedented number and almost three times as many as the fourteen under the Hughes Court that prompted President Roosevelt’s unsuccessful Court-packing plan in 1933.

  Rehnquist’s opinion in Seminole Tribe of Fla. v. Florida (1996) is unquestionably the most important opinion in this line of cases and the most important of any sort that he authored as chief justice of the United States. There, relying on sovereign immunity and prior misinterpretations of the Eleventh Amendment, the Court invalidated the provision in the Indian Gaming Regulatory Act that authorized the Seminole Tribe to sue the State of Florida to enforce its statutory rights.

  Because the chief’s opinion and the dissents occupy nearly 140 pages of the official reports, I cannot begin to summarize all of the debate or even the explanation advanced for overruling a seven-year-old decision in which the Court had upheld the enforceability of a federal remedy against Pennsylvania for environmental damages that the state had caused. In essence, the majority in Seminole Tribe converted the common-law doctrine of sovereign immunity into a constitutional rule. Th
is matters because Congress can modify common-law rules, but its legislation does not amend the Constitution.

  The extraordinary consequences of the holding were to preclude Congress from authorizing private plaintiffs to recover damages for a state’s violation of federal law. Whereas the Eleventh Amendment itself dealt only with the jurisdiction of the federal courts in suits brought against states by noncitizens, the logical implication of Seminole Tribe—at least according to the five-justice majority in Alden v. Maine (1999)—is preclusion of private litigation to enforce federal rights in both state and federal courts.

  Rather than my repeating the dissenters’ explanation of the errors in the majority’s reliance on history rather than legal text, it seems appropriate to make just three brief comments on the interest in protecting the “dignity” of the sovereign states. As the text of Article VI that I have quoted makes perfectly clear, the State of New York and the City of New York have precisely the same duty to obey federal law. The fact that a former colony was an independent “sovereign” during the few years between the Declaration of Independence and the ratification of the Constitution does not provide a rational basis for granting New York’s state government an immunity that is not available to New York City.

  The common-law doctrine of sovereign immunity originated in England and was the product of a belief that the king could do no wrong, and even if he did sin, only God could decide the appropriate remedy. As Thomas Macaulay explained in his classic history of England, that conception of sovereignty was rejected in 1688 when the abysmal reign of James II came to an end:

  Unhappily the Church had long taught the nation that hereditary monarchy, alone among our institutions, was divine and inviolable; that the right of the House of Commons to share in the legislative power was a right merely human, but that the right of the king to the obedience of his people was from above; that the Great Charter was a statute which might be repealed by those who had made it, but that the rule which called the princes of the blood royal to the throne in order of succession was of celestial origin, and that any Act of Parliament inconsistent with that rule was a nullity. It is evident that, in a society in which such superstitions prevail, constitutional freedom must ever be insecure. A power which is regarded merely as the ordinance of man cannot be an efficient check on a power which is regarded as the ordinance of God. It is vain to hope that laws however excellent, will permanently restrain a king who in his own opinion, and in that of a great part of his people, has an authority infinitely higher in kind than the authority which belongs to those laws. To deprive royalty of these mysterious attributes, and to establish the principle that kings reigned by a right in no respect differing from the right by which freeholders chose knights of the shire, or from the right by which judges granted writs of Habeas Corpus, was absolutely necessary to the security of our liberties.