Five Chiefs

by John Paul Stevens

  Occasionally, in the midst of an oral argument, the trial judge will let counsel know that he has made up his mind on an issue in dispute. The lawyer who decides to reinforce the judge’s conviction by volunteering an additional argument favoring the result will sometimes be surprised by a response from the judge that he had never considered that point but on reflection finds that it changes his mind about the issue. Hence, the advice that seasoned lawyers have often given to young associates: “Never argue with a judge who is about to rule in your favor.” I think that when Bill attempted to provide Tony with additional reasons for adhering to his most recent evaluation of the issues in the Patterson case, he may have overlooked the value of that advice.

  I have no memory of regretting any assignment I made, but I do think I hit the nail on the head in at least three important cases (Blakely v. Washington, Romer v. Evans, and Grutter v. Bollinger) in which the chief was in dissent. Despite the vigorous dissent in each, these three excellent opinions will, I am confident, pass the test of time with flying colors.

  In Blakely (2004), Justice Scalia wrote a cogent and persuasive opinion. That case held that a judge could not impose a more severe sentence than was authorized by the jury’s verdict. In response to his four dissenting colleagues, Scalia declared:

  Ultimately, our decision cannot turn on whether or to what degree trial by jury impairs the efficiency or fairness of criminal justice. One can certainly argue that both these values would be better served by leaving justice entirely in the hands of professionals; many nations of the world, particularly those following civil-law traditions, take just that course. There is not one shred of doubt, however, about the Framers’ paradigm for criminal justice: not the civil-law ideal of administrative perfection, but the common-law ideal of limited state power accomplished by strict division of authority between judge and jury. As Apprendi [v. New Jersey (2000)] held, every defendant has the right to insist that the prosecutor prove to a jury all facts legally essential to the punishment. Under the dissenters’ alternative, he has no such right. That should be the end of the matter.

  Perhaps that experience contributed to his claimed entitlement four years later to be “the darling of the criminal defense bar.”

  Justice Kennedy’s opinion for the Court in Romer v. Evans (1996)—another case in which the chief was in dissent—killed two birds with one missile. First, it invalidated a Colorado statute that treated homosexuals as second-class citizens by, in the words of the Colorado Supreme Court, repealing all existing state and municipal bans on antihomosexual discrimination and “prohibit[ing] any governmental entity from adopting similar, or more protective statutes, regulations, ordinances, or policies in the future.” Second, it sounded the death knell to Bowers v. Hardwick, the 1986 case holding that the due process clause of the Fourteenth Amendment did not forbid Georgia from making it a crime for same-sex couples to engage in conduct that was assumed to be lawful for heterosexuals. By making mere animus toward a group an inadequate rationale for a discriminatory law under the equal protection clause of the Fourteenth Amendment, Romer suggested that a criminal prohibition of homosexual sodomy would likely be struck down if challenged on equal protection grounds. Seven years later, in Lawrence v. Texas (2003), Justice O’Connor took this position. As Justice Kennedy wrote for the majority in that case, Bowers’s refusal to acknowledge the due process implications of its holding also “sustained serious erosion from… Romer.” That was one reason that Kennedy was able in Lawrence to announce as the opinion of the Court that “Bowers v. Hardwick should be and now is overruled.”

  Justice O’Connor convincingly explained—over the chief’s dissent—why the University of Michigan Law School’s affirmative action program was constitutional in Grutter v. Bollinger (2003). The decision in that case has an interesting relationship to the president who appointed me to the Court, Gerald Ford.

  Ford had long been concerned with fair treatment of minorities when Grutter was working its way through the courts. That concern dates at least to his days as a football star at the University of Michigan. One of Ford’s good friends and teammates on the 1934 squad was Willis Ward, who happened to be an African American. While that fact would have no special significance today, it was then a matter of critical importance to the Georgia Tech team that was scheduled to visit Ann Arbor to play against Michigan. The visiting team announced that they would boycott the game unless they were assured that Ward would not be allowed to play against them. Gerald Ford was so offended by the ultimatum that he told the coach that he would not play unless Michigan rejected the Georgia demand. Ultimately, however, Ward persuaded him to play because Ward thought it more important to beat Georgia Tech—which Michigan did—than to cancel the game as a protest.

  During pendency of the Grutter case, Washington, D.C., lawyers Carter Phillips and Virginia Seitz prepared an amicus curiae brief on behalf of a number of senior military officers. A rumor circulated that President Ford played a role in that effort. In response to an inquiry that I made after my retirement, Carter Phillips advised me—while taking pains not to breach any attorney-client privilege—that Ford was both the “but-for” cause of the brief’s preparation and filing and the first person to suggest that former military officers as a group had an important message to present to the Court.

  On the latter score, Ford’s judgment was correct for three reasons. As Justice O’Connor acknowledged in her opinion for the Court, there was a good deal of language in the Court’s earlier opinions that suggested that remedying past discrimination was the only permissible justification for race-based governmental action. Rather than discussing any need for—or indeed any interest in—providing a remedy for past sins, the military brief concentrated on describing future benefits that could be obtained from a diverse student body. The authors of the brief did not make the rhetorical blunder of relying on a dissenting opinion to support their legal approach, but they effectively endorsed the views that I had unsuccessfully espoused in an earlier case that involved a black high school teacher in Jackson, Michigan. The Court’s holding—that the law school had a compelling interest in attaining a diverse student body—emphasizes the future rather than the past.

  The brief also recounted the transition from a segregated to an integrated military. Within a few years of President Truman’s 1948 executive order abolishing segregation in the armed forces, the enlisted ranks were fully integrated. Yet during the 1960s and 1970s, they were commanded by an overwhelmingly white officer corps. The chasm between the racial composition of the officer corps and that of the enlisted personnel undermined military effectiveness in a number of ways set forth in the brief. In time, the leaders of the military recognized the critical link between minority officers and military readiness, eventually concluding that “success with the challenge of diversity is critical to national security.” They met that challenge by adopting race-conscious recruiting, preparatory, and admissions policies at the service academies and in ROTC programs. The historical discussion in the brief implied that an adverse ruling would jeopardize national security and that an approval of Michigan’s programs would provide significant educational benefits for civilian leaders.

  The twenty-nine leaders who joined the brief added impressive force to their argument. Fourteen of them—including Wesley Clark and Norman Schwarzkopf—had achieved four-star rank. They were all thoroughly familiar with the dramatic differences between the pre-1948 segregated forces and the modern integrated military. President Ford, who also rendered heroic service during World War II, played a role in selecting them.

  Writing for the Court, Justice Sandra Day O’Connor quoted from and embraced this argument from the brief in terms that confirmed the appropriateness of her authorship of the opinion:

  At present, “the military cannot achieve an officer corps that is both highly qualified and racially diverse unless the service academies and the ROTC used limited race-conscious recruiting and admissions policies.”… To fulfill its missio
n, the military “must be selective in admissions for training and education for the officer corps, and it must train and educate a highly qualified, racially diverse officer corps in a racially diverse educational setting.”… We agree that “[i]t requires only a small step from this analysis to conclude that our country’s other most selective institutions must remain both diverse and selective.”… Effective participation by members of all racial and ethnic groups in the civil life of our Nation is essential if the dream of one Nation, indivisible, is to be realized. [Bracketing in original.]

  Although it was not evident at the time, it is now clear that Gerald Ford shared those views.

  Four years ago, in a case involving public school affirmative action programs, Chief Justice John Roberts took a different view, asserting simply, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” I am confident that—like the majority of the Court that did not join that part of the chief’s opinion—President Ford and the military leaders who filed the amicus brief in Grutter would also have declined to concur.

  My further comment on my career as the second among equals applies to the entire career of each of the chiefs with whom I served. I have no memory of any member of the Court raising his or her voice during any conference over which I presided or showing any disrespect for a colleague during our discussions. In his State of the Union address in 1976, President Ford eloquently referred to our country as a place where Americans can disagree without being disagreeable. That comment accurately describes the Supreme Court where I worked. It is a place where we not only could but regularly did disagree without being disagreeable.

  Epilogue

  AS I SUGGESTED IN my introduction, instead of dividing the history of the Court into seventeen periods, each named for one of the institution’s seventeen chief justices, that history might more properly be further subdivided into many more increments, each named after the justice who most recently joined the Court. If so, the precise number of those increments could be the subject of some debate. Most would agree that the original six justices—all appointed in 1789 or 1790—formed only one new Court. They all participated in their inaugural published decision in 1791. Similarly, Associate Justices Rehnquist and Powell surely marked the introduction of a single new Court, given that they began their service on the same day. A harder question would be presented by two justices who joined the Court on different but nearby dates while the Court continued to do its business, as occurred with Samuel Chase (January 27, 1796) and Oliver Ellsworth (March 4, 1796). However one answers these questions, it was in the most significant case decided during the first term of the Elena Kagan Court that the new second among equals, Justice Scalia, wisely used his assignment authority as the senior justice in the majority to write the Court opinion himself. The case—Virginia Office for Protection and Advocacy (VOPA) v. Stewart (2011)—arose out of an investigation into the deaths of two patients at state-run mental hospitals. The investigation was conducted by a state agency (VOPA) that received federal funds to advocate and protect the rights of individuals with developmental disabilities. Under the controlling federal statute, VOPA had a right to obtain relevant medical records, but under state law, the officials in charge of the hospitals claimed, those records were privileged. Thus the case raised the novel question whether one state agency (VOPA) claiming that officers of another state agency are violating a federal statute may sue those state officers in a federal court. Over Chief Justice Roberts’s dissent, the Court correctly held that the federal court had jurisdiction to require the defendants to obey federal law.

  In his characteristically lucid opinion for the Court, Justice Scalia explained that the result followed from a straightforward application of the reasoning in the 1908 decision in Ex parte Young. That case held that when a federal court commands a state official to do nothing more than refrain from violating federal law, the official must obey. Because the state cannot empower its officers to violate federal laws in such cases, officers in that circumstance are not agents of the state for sovereign immunity purposes. In his VOPA dissent, Chief Justice Roberts argued that if Justice Scalia’s interpretation of Ex parte Young was correct, “two of our recent precedents were wrongly decided.” One of those “recent precedents” was the Rehnquist opinion in Seminole Tribe—the roundly criticized case that was primarily responsible for enabling Rehnquist’s tenure to set the record for holding the most federal statutes unconstitutional.

  Because I firmly believe that the Court’s opinion in Seminole Tribe will one day be ranked with the majority opinion in the Lochner case as among the Court’s most unfortunate, the debate between Scalia and Roberts is a significant reminder of the need to reexamine that precedent. Their debate is even more significant because both of their opinions are so unequivocal in relying on the interest in protecting the “dignity” of the state as the sole justification for preserving the doctrine of sovereign immunity. The “dignity” rationale for that judge-made doctrine has been repeated over and over again in opinions written after Bill Rehnquist joined the Court. But neither earlier history nor common sense provides any support for the notion that the preservation of a state’s “dignity” can justify disobedience of federal law.

  In 1821, in his opinion in Cohens v. Virginia upholding the Supreme Court’s appellate jurisdiction in a case in which a state was a defendant, Chief Justice Marshall discussed the history of the Eleventh Amendment. After noting that the amendment was adopted at a time when all the states were greatly indebted and concerned about defending collection claims in federal court, he observed that we must ascribe the amendment “to some other cause than the dignity of a State.”

  The text of the Constitution does not mention the word dignity or the word sovereignty. It does, however, state in its preamble that one of its purposes was to “establish Justice.” The term justice is not defined in either the Constitution itself or in any federal statute of which I am aware. I shall therefore conclude by referring to two quite different ways of thinking about the idea of justice that are both described in Plato’s Republic.

  A serene and elderly gentleman named Cephalus accepted Socrates’ suggestion that justice consisted of speaking the truth and paying one’s debts, whereas Thrasymachus, a younger and more belligerent antagonist, proclaimed that “justice is nothing more than the interest of the stronger.” Presumably the senior citizen would require a ruler to tell the truth and to pay its debts. For Thrasymachus, however, whenever it was in a sovereign’s interest to rely on sovereign dignity as a reason for refusing to obey the law, it would be just for him to do so.

  An Illinois lawyer named Abraham Lincoln shared Cephalus’s thoughts about justice and my views about sovereign immunity. In his State of the Union message of 1861, he said:

  It is as much the duty of Government to render prompt justice against itself, in favor of its citizens, as it is to administer the same between private individuals.

  Acknowledgments

  One pleasure of writing this book was getting to work with old friends and valued colleagues. Another is the opportunity to recognize their contributions in print. Some come readily to mind—my classmate and contemporary Art Seder (we were born on the same day), who clerked for Fred Vinson; my former law partner, the late Ed Rothschild, who counseled me during my confirmation hearings; Judge Tim Dyk of the United States Court of Appeals for the Federal Circuit and Frank Beytagh, former Dean of the Moritz College of Law at the Ohio State University, both former clerks for Earl Warren; and countless present and former employees of the Supreme Court. Bill Suter, the incomparable Clerk of the Court, for example, is not just the source of statistical data but also the man who measured the distance between the lectern and the chief justice for me. And Catherine Fitts, the curator, verified the history of the statue of John Marshall. At the Library of Congress, Daun Van Ee has facilitated important research for the book. As was true with respect to the many judicial opinions I have written over t
he years, I have received invaluable help from my law clerk Sam Erman throughout my work on this book; from his successor, Dina Mishra, with its conclusion; and from library assistants Linda Corbelli, Jill Duffy, Patricia Evans, Michelle Humphries, Melissa Kreiling, Linda Maslow, Catherine Romano, Sara Sonet, and Kate Wilko. I am grateful to Peter Edwards, my aide to chambers, for his ongoing logistical efforts. My agent, Peter Bernstein; my editor, Geoff Shandler; and Geoff’s staff at Little, Brown and Company suggested important improvements and deserve praise for helping shepherd this project to completion. With the help of Steve Petteway, the Court photographer, the pictures in the volume were selected by my secretary, Janice Harley, and by my beautiful dietician, who happens to be married to me.

  About the Author

  JOHN PAUL STEVENS received a bachelor’s degree in English literature from the University of Chicago. On December 6, 1941, he joined the Navy and spent most of World War II at Pearl Harbor, analyzing Japanese naval communications. Afterward, he studied law at Northwestern University and was then employed as a law clerk for Justice Wiley Rutledge of the U.S. Supreme Court during its 1947–48 term. He practiced law in Chicago from 1949 until 1970, when President Nixon nominated him to be a judge on the United States Court of Appeals for the Seventh Circuit. In addition to building a private practice before becoming a judge, Stevens served as associate counsel to the Subcommittee on the Study of Monopoly Power of the House Judiciary Committee (1951–52), as a member of the National Committee to Study the Antitrust Laws (1953–54) appointed by Attorney General Herbert Brownell, and as general counsel (1967) to a special commission that was investigating the integrity of a judgment of the Illinois Supreme Court and that resulted in the resignation of two members of that court. He was also active in the work of the Chicago Bar Association, having been elected second vice president shortly before leaving private practice to become a judge.