Remembering Justice John Paul Stevens
Justice John Paul Stevens—one of the nation’s oldest, longest-serving, and most-revered justices—passed away at the age of 99 on Tuesday. On this episode, we remember the man, the justice, and some of his most influential majority opinions and dissents. Two of Justice Stevens' former law clerks, Daniel Farber of Berkeley Law and Kate Shaw of Cardozo Law, share some favorite memories from their clerkships and commemorate Justice Stevens’ life and legacy in conversation with host Jeffrey Rosen.
Daniel Farber is the Sho Sato Professor of Law at the University of California, Berkeley, and the Faculty Director of Berkeley’s Center for Law, Energy, and the Environment. Before entering academia, he practiced law with Sidley & Austin, where he primarily worked on energy issues. He was a law clerk for Judge Philip W. Tone of the United States Court of Appeals for the Seventh Circuit and then for Justice Stevens at the Supreme Court.
Kate Shaw is a Professor of Law at the Benjamin N. Cardozo School of Law at Yeshiva University and the Co-Director of the Floersheimer Center for Constitutional Democracy. Before joining Cardozo, she worked in the White House Counsel’s Office as a Special Assistant to the President and Associate Counsel to the President under President Obama. Professor Shaw is also a host of the podcast Strict Scrutiny. She clerked for Judge Richard A. Posner of the U.S. Court of Appeals for the Seventh Circuit and then for Justice Stevens at the Supreme Court.
Jeffrey Rosen is the President and Chief Executive Officer of the National Constitution Center, the only institution in America chartered by Congress “to disseminate information about the United States Constitution on a nonpartisan basis.”
- Atkins v. Virginia (2002)
- District of Columbia v. Heller (2008)
- Bush v. Gore (2000)
- Texas v. Johnson (1989)
- Citizens United v. Federal Election Commission (2010)
- Hamdan v. Rumsfeld (2006)
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This episode was engineered by David Stotz and Jackie McDermott and produced by Jackie McDermott. Research was provided by Ellinor Rutkey, Zoe Dettelbach, Michael Boyd, and Jackie McDermott.
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Jeffrey Rosen: [00:00:00] I'm Jeffrey Rosen, president and CEO of the National Constitution Center, and welcome to We the People, a weekly show of constitutional debate. The National Constitution Center is a non-partisan non-profit chartered by Congress to increase awareness and understanding of the Constitution among the American people.
Justice John Paul Stevens passed away on Tuesday at the age of 99. Justice Stevens was the second-longest serving and second-oldest justice to service in Supreme Court history, as well as one of the most revered. On today's episode, we remember Justice Stevens, his judicial philosophy, and some of his most influential majority opinions and dissents. And I'm so thrilled and grateful that joining us to commemorate Justice Stevens' life and legacy are two of his extremely distinguished former law clerks. Kate Shaw is professor of law that the Benjamin N. Cardozo School of Law at Yeshiva University and co-director of the Floersheimer Center for Constitutional Democracy. She clerked for Justice Stevens during the 2007 term. And Daniel Farber is the Sho Sato Professor of Law at the University of California, Berkeley and faculty director of Berkeley Center for Law, Energy, and the Environment. He clerked for Justice Stevens during the 1976 term.
Kate, Daniel, thank you so much for joining us on this important occasion.
Kate Shaw: [00:01:29] Thank you so much, Jeff.
Daniel Farber: [00:01:31] Thank you.
Rosen: [00:01:32] Kate, let's begin by summing up Justice Stevens' constitutional legacy. What would you say to our listeners about the essence of his approach to the Constitution?
Shaw: [00:01:44] Well, I think that he is someone who eschewed grand theories of legal or constitutional interpretation, so it's hard legacy to sum up, and it's a hard legacy to reduce to a formula, and I think that's kind of by design. I mean, he was a consummate common law judge. So he really believed that every case should be approached on its own terms with this kind of laser focus on the facts of the case and building on the cases that had come before. So I think his methodology was very much a common law methodology, whatever the kind of subject matter of the case including constitutional cases. And I do think he believed that the Constitution's really open-ended guarantees were meant to be given content by judges and that the document was meant to facilitate human flourishing, and that there was going to be some disagreement about how that would all work, but that when it came to figuring it all out, there was really no substitution for just the exercise of judgment.
Dave Pozen at Columbia I think has a wonderful piece from 2011 in which he talks about Justice Stevens and the kind of exercise of judgment and the obligations of judgment. And just, when it came down to it, I don't think he thought that grand theories really were the answer, just kind of the hard work of judging really kind of was the answer. So I think that some people found that frustrating, because in the right hands, I think in Justice Stevens' hands, it led very much to just results I think in my view, and I think in the view of people even who didn't disagree with him, didn't agree with him rather in a number of cases. But that in the wrong hands, that that was kind of open-ended and maybe an invitation to judicial willfulness. But I think he just had a lot of faith in the kind of good intentions and the kind of hard work of federal judges and Supreme Court justices.
And I mean, I saw him sort of extend that kind of presumption of good faith and good sense to his colleagues and to his law clerks and to the lawyers arguing before him. So I think that that is probably as good a summation as any. He's a real common law judge. I do think when it came to statutory cases, he had a more kind of easily identifiable methodology. I think he was a purposivist, right? I think he really thought judges should look at statutes with an eye to the kind of purpose or intention of the drafters. And he'd look at any kind of evidence he thought might be relevant to kind of illuminate that. But sort of the purpose was always to be kind of discerned in the context of the overall statutory scheme and the overall kind of goals and purposes of both the particular statute and the law kind of writ large.
But I do think his rejection of any real labels when it came to methodology was at peace with his kind of independence more broadly. He wasn't going to be boxed in. I think it was a wonderful character trait that you sort of saw manifest in a lot of different ways.
Rosen: [00:04:20] And indeed, as you say, Justice Stevens was very focused on case by case common law adjudication and in his absolutely riveting new book, because it was published in May, The Makings of a Justice: Reflections on My First 94 Years, he does talk about how at law school at Northwestern, his teachers emphasized the facts of each case rather than grand theories. Dan, your thoughts on Justice Stevens' constitutional philosophy, and I'll just ask you, I made a stab at identifying a theme based on a wonderful interview I had with him in 2007, and that was the theme of impartiality in rejecting both partisan gerrymandering and firing people for patronage reasons, as well as certain forms of other gerrymandering. He emphasized the importance of government neutrality. Is that an important theme, or would you identify others?
Farber: [00:05:13] Well, I do think that's an important theme in his thinking, and I think it fits into a sort of broader sense and belief in institutions of government as not just being partisan struggles or arbitrarily producing compromises or reflecting ideology, but as actually capable of seeking the public interest. And I think for that reason, I think that fits with the purposivism that Kate was talking about, because for that to make sense, you kind of have to believe that Congress is an institution, isn't just making these arbitrary backroom deals as some people seem to believe, but that it actually is capable of pulling itself together and, at least in some rough sense, seeking to further the public interest. You have to think that judges are capable of being impartial and of seeking just solutions in cases. You have to believe that the president isn't just operating with his eye to or her eye to re-election, but instead again, is trying to advance the interests of the United States.
And that idea of pursuing the public interest I think has within it the idea of impartiality, because the responsibility is owed to the whole public, not just to, say, your own supporters.
Rosen: [00:06:55] Kate, you are the host of our sister podcast, Strict Scrutiny. I'm delighted to give a shout-out to your wonderful show. And you also did a remarkable interview with Justice Stevens recently for SCOTUS blog where he was so vivid about lots of topics, including the fact that when interviewing law clerks, he thought that getting along with them was really important. “I always prided myself,” he told you, “on the ability to choose good clerks. One key element is whether I thought I'd like the person.” So give us a sense of what he was like as a person. You could talk about your own clerkship interview or just your interactions with him in chambers. But what was he like?
Shaw: [00:07:33] He was just a remarkably kind and down-to-earth and unfailingly polite sort of gentle soul. I mean, he had an unbelievable razor sharp intellect, recall for cases and doctrine that just blew us away basically daily. But he had this really kind of gentle and unassuming demeanor. And he was just a lovely and gracious boss. So he'd been on the Court for over 30 years by the time I clerked for him, and yet he approached all of us I think in sort of the genuine spirit of, this was a collaborative undertaking. We had opinions that were valuable and that he wanted to hear. And when you have someone who's been on the Court for 30 years who's saying ... We're grappling with this Eighth Amendment case or a Second Amendment case. I mean, these are sort of big, important principles, and it was a little terrifying I think initially to be taken so seriously.
But then I've written a little bit about the experience, but I think he had this kind of a transformational effect on everyone, which is he just sort of, he had really, I think he had high standards. But he just, I think he kind of came in extending this kind of belief that you were sort of good enough to be there, and then you kind of felt like you had no choice but to be good enough to be there. And so you just kind of upped your game, because you kind of had to and you wanted to work to kind of earn this faith that he had somehow decided to repose in you. So he shared a lot with his law clerks, so after the conference in which the justices discuss the cases and cast their votes, they all return to chambers and not every justice was that forthcoming with law clerks. So Justice Stevens would come back and give us a lot of detail regarding not just the votes cast, but a lot of what had been said in conference, which was really instructive as we sort of set to working on opinions.
But law clerks in other chambers would then call and say, “I heard nothing. What did they decide, and what was said?” And we were free to share that. But I think he really did view it as kind of a collaborative undertaking. He did famously, and actually, draft opinion ... He wrote the first draft of every opinion himself. Sometimes those were just a few paragraphs, sometimes they were really detailed first drafts with sections and sub-sections and citations. So it really depended on the case, but I think, I mean sort of to go back to the theme of his attention to detail and fact, I think he found it really essential to kind of work through not just kind of the legal sort of architecture of an opinion, but at least some of the facts to make sure that he really understood them so that he could be confident in the output. So he really didn't outsource that first draft the way most justices do.
And he was the only justice at the time who did not participate in the cert pool. So he ... His law clerks reviewed, we divided up and reviewed every cert petition, and at the time, there were eight or 9,000 coming in a year. And you skim them and you write up memos only on the ones you think he might be interested in. But it was a lot of additional work for his law clerks and for him. But I think he thought it was really important just as a matter of kind of the institution and its integrity that more than one set of eyes was set on every cert petition. And we respected that a great deal.
I remember once late in the term, we were jammed with finishing opinions, and the certs were kind of piling up because you're doing the cert work as you're doing the opinion work. And he sort of wandered into chambers, and I've heard he did this with other law clerks too, when he saw the big pile and he said something like, “You want me to take some of the certs? I can ... I'll just review them myself.” We're just like, “No. Let us do that, Justice.” But he didn't think it was beneath him. He didn't think anything was beneath him. And I think that really was the kind of justice and kind of boss he was.
Rosen: [00:10:51] Wonderful stories, very striking that for much of his tenure, he was the only justice who wrote his own first drafts, and for a time, the only justice not in the cert pool. Now there are more. And those human stories are so vivid. Christopher Eisgruber, now president of Princeton, a former Stevens clerk, told the story recently of Stevens being in a room, and a woman, a law clerk, was asked to get coffee. And he realized what was going on, and he said, “I think it's my turn to do that.” Just an example of his thoughtfulness. Dan, you were clerking for Justice Stevens during his first full term on the Court. That was a time when the Burger Court was, if not divided ideologically, at least chafing under the leadership of Chief Justice Burger, a discontent that was later aired in the book The Brethren in 1979. Tell us about what it was like to be with the justice as he joined the Supreme Court and how he got his sea legs on the job.
Farber: [00:11:50] Yeah, so I think in many ways, the clerkship experience was very similar to what Kate described. I think to the extent that there were differences, I think one of them was just the fact that at that point in his judicial career, he had not actually had any occasion to think about the constitutionality of the death penalty or of abortion or many of the other, gerrymandering, many of the other issues that were already coming before the Court. And so he was really kind of feeling his way to a certain extent, and very open to thinking about different approaches. It wasn't at all clear to us, for example, how he would come down on the abortion issue. And I think that that made kind of an interesting time to see him kind of orienting himself. He was expected to be a fairly conservative member of the Court, and in Seventh Circuit, particularly in criminal procedure cases, he had tended to be on the government's side. And so he was very open.
He also spent I think, I'm not sure, say, at Kate's time, but when we were clerking, he was basically in chambers all day every day of the week, or at least of the Monday through Friday. And he was constantly popping into the clerks' office with having just had an idea and wanting to bounce it off somebody. And I think that kind of interchange also made it especially an exciting year to be working with him.
Rosen: [00:13:50] Wow. A remarkable experience to see the makings of the justice. Kate, Dan referred to the fact that Justice Stevens was expected to be conservative. When I interviewed him in 2007, he still called himself a judicial conservative and said it wasn't he who changed, but the Court changed around him as, in his view, every justice appointed after him with the exception of Justice Ginsberg, was more conservative than the justice he or she replaced. One of the big areas where he seemed to change his mind was the death penalty. The Baze case was decided the term you were clerking, and I think that represented the moment that he changed his mind. And in his book, he says that his change of mind was also influenced by his youthful experience of seeing his father unjustly prosecuted and seeing the criminal justice system go wrong. So tell us about Baze and Justice Stevens' evolving views about the death penalty.
Shaw: [00:14:44] Sure, yeah. And in terms of his ... His father was indicted and then convicted for embezzlement when he was just a child after his family hotel fell into financial distress after the stock market crash. And his father's conviction was later unanimously reversed, and I think it did instill in him some degree of skepticism about the output of the criminal justice process. He said it's a good process, people try their best, but it's not infallible, and when you're talking about the ultimate punishment, it would have to be ... I think at least that's where he kind of ended up. And it was a progression. He got on the Court in 1975. The Court had in 1972 essentially put in place a moratorium on the death penalty, and then reinstated it after states purported to address some of the deficiencies that had been identified in Furman in 1972. So in '76, the justice voted to allow some of these new state capital punishment laws to go into effect.
And then over the course of the ensuing decades, I think really did ... I think as you say Jeff, he always said he didn't change much. I think that it was more the Court and the country that changed. And I think that the Court certainly did change, but in some areas, I think without question, he did change. So I think that he was part of this effort to try to limit the application of the death penalty in a few different ways. One, the categories of individuals who were even eligible for capital punishment, right? He either, he wrote the opinion in Atkins versus Virginia, finding that individuals with intellectual disabilities were categorically ineligible under the Eighth Amendment for the death penalty, and he voted or assigned opinions basically reaching the same conclusion for juvenile offenders and non-homicide offenses.
But at the same time saw ... So there were certain kind of ways in which the Court sort of oversaw the narrowing of the application of the death penalty, but in other areas, things like victim impact evidence and testimony and the disqualification of jurors who oppose the death penalty, and sort of in lots of other areas, he found the Court not willing to kind of mandate the kinds of limitations on the death penalty that would be required to kind of produce a system in which there could be sufficient confidence. And I'm not really sure at what point kind of the switch flipped for him, but it was the opinion, the case that led to his announcement that he had concluded that the death penalty was unconstitutional was Baze versus Rees, my term, which was a case about a challenge to a lethal injection protocol. So not about categories of offenders or really processes, but the actual, the kind of mechanics of execution.
And he wrote a long opinion that sort of kind of detailed his experience with sort of observing the Court's interaction with and stewardship of the death penalty at that point, just over three decades on the Court, and concluded that essentially, the experiment had failed and that the Court hadn't been able to kind of create a ... or the states hadn't, and the Court, sort of a system in general just wasn't working well enough to sort of ... It did not sort of actually achieve any of the objectives or achieve them sufficiently well, that the death penalty purportedly advanced to kind of warrant continuing with the experiment. But it wasn't a big dramatic announcement. It was kind of this sort of understated and very kind of classic Justice Stevens.
When Harry Blackmun announced that he had essentially reached the same conclusion, he had this I think very beautiful opinion that, “This language no longer ... From this day forward, no longer shall I tinker with the machinery of death.” There really wasn't anything quite like that in the Justice Stevens opinion in Baze. It was much more understated. And it did something else. So he had announced that he had concluded that the death penalty was unconstitutional, but it also concurred in the Chief Justice's opinion rejecting the challenge of lethal injection protocol in that case. Because on current law, as it stood, right, the death penalty was constitutional under the Eighth Amendment. He hadn't persuaded enough colleagues.
It's not actually a vote I ever totally understood. But it meant that he continued to participate in the Court's kind of administration of the death penalty, both in Baze and in future cases, as opposed to kind of deciding to dissent in a standing way from every death penalty case, so that, as I think both Justice Marshall and Justice Brennan had done. And so it just allowed him to kind of participate in the work of the Court in this area in a way that I think maybe he felt he couldn't have done in the same fashion had he begun sort of to just kind of dissent in a standing way in all of these cases. So I think that too is ... He did it quite differently from others, but he continued to demonstrate this respect for precedent I think in the way he approached these cases subsequent to Baze.
Rosen: [00:19:20] Dan, it was in July 1976 that the Court decided Gregg versus Georgia, concluding by a 7 to 2 vote that the death penalty did not violate the Eighth and Fourteenth Amendments under all circumstances, reversing the holding of the Furman case four years earlier. Is it right, Gregg was decided just before you started clerking? Were there death penalty cases your term, and then tell us more about both his evolving views about the death penalty and about criminal procedure generally. In his book, he talks about Jurek and Texas, where he said is he might have changed his vote if he knew about the facts and viewed them differently. Were his criminal procedure and criminal law cases very fact-specific, or did he actually become more liberal in other criminal procedure cases?
Farber: [00:20:05] So in terms of the death penalty, Gregg was in the spring before I started my clerkship during the summer. So I wasn't there for that. I think even the following year, he had started to have second thoughts about Jurek, partly due to a law review article criticizing the opinion in that case for misunderstanding what Texas was really doing. We were very fortunate as law clerks I think in that the death penalty had not really had an opportunity to start coming into effect again because almost all the states that wanted to have the death penalty had to redo their laws in order to correspond to the Court's rulings. So we were not in the situation of having ... being repeatedly faced with these midnight stay requests and so forth.
So the one death penalty case that we had was the Gilmore case, which was a pretty unusual case. This was a death penalty case in which the defendant decided not to appeal the death penalty, I guess in ... from a sense of remorse. And he ... So he said he was willing to accept the death penalty, but his mother filed a petition for review of the death penalty. And really, what the Court had to decide was whether she had standing to do so when he had decided not to appeal. There was also a question about whether he was mentally capable of making that decision, but there was evidence in the record from psychiatrists that he actually was not incompetent. And the Court decided that she did not have standing. So it really didn't get ultimately to the merits of the case. Instead it went off on the standing ground.
In criminal procedure cases, I think they don't really stand out in my mind from that term. The one that I remember was one that involved, as I recall, the question of whether the prosecutor had concealed evidence from a defense council, which is a violation of the Constitution. And he had originally voted to reject that claim, and then discovered when he was trying to write that first draft that he just could not write the draft in a way that satisfied him, so he switched his vote. And I think Burger, who had assigned the opinion to him, was very unhappy about that. And he got a series of really fairly dismal opinion writing assignments after that for a while. But I didn't really see any signs in any large way that he was rethinking those issues. I think that ... My sense is that he had, not in the sense of a grand jurisprudential reversal, but more in the sense of feeling more concerned about privacy issues and more concerned about police abuse of authority than maybe he had been when he first joined the Court.
Rosen: [00:23:53] Kate, another important case decided your term was the Heller case involving the Second Amendment. And in his book The Makings of a Justice, Justice Stevens reproduced a remarkable memo that he sent to Justice Scalia and his colleagues in the majority trying to persuade them to change their mind and to vote against recognizing an individual right to bear arms. He obviously felt so strongly about that issue that in his book Six Amendments, he proposed amending the Eighth Amendment to ban the death penalty. Tell us more about Heller and Justice Stevens' views about why it was so important.
Shaw: [00:24:30] Yeah, I think he felt incredibly strongly about the case then and really in all of his years after his retirement. It's not the case that he, I think in some ways, never quite got over. And he's talked about it quite extensively publicly, so I do think it's fine to talk pretty freely about it at this point. So, and of course Heller's the case in which the court 5-4 concludes that the Second Amendment protects an individual right to gun ownership. And to Justice Stevens, this was a radical and unjustified reversal of what had been the settled understanding of a Second Amendment for over two centuries. So coming out of conference, so the case was argued in March, and the vote coming out of conference was 5-4. But the justice really believed that the case, that the position that this was a right that was tied to militia use as opposed to just purely protected individual kind of self-defense gun ownership, was so powerful that potentially Justice Kennedy, potentially even Justice Thomas, he mentions both of them in the book. And he believed that they could be persuaded.
And so he took the unusual step in attempting to pick up a fifth vote of circulating his draft dissent, which he hoped would become a majority opinion, prior to Justice Scalia's circulation of what coming out of conference was the majority opinion. So it was already fairly late in the term, and so we set to work drafting a complete dissent that needed to beat the circulation of the majority opinion. And so this met, it was a real sprint, because Justice Stevens wanted this comprehensive kind of canvassing of the historical materials and once, to sort of, to see for himself sort of what he thought the record showed how it was best read, and then when he became quite convinced that his position was correct, for one of the historical material in the draft opinion.
So we were sort of sprinting just in a matter of weeks just to try to get something done. And by the end of April, I know the date is in his book, we had a draft dissent that again he hoped would become a majority opinion ready, and yeah, he appended this pretty extraordinary memo to the cover that basically said, “I'm not sure the rest of you appreciate just how grave an error the Court is on the precipice of making, but it's not too late. So please take a look at the enclosed.” And so we sent it around. And then it was just kind of waiting, and it was over a month between circulation of the draft dissent and the circulation of Justice Scalia's majority opinion, but there were some intervening kind of conversations, but very quickly, Justice Scalia picked up the five votes he needed.
And then, it was a question of ... I remember when the draft majority opinion came around. It landed in our inboxes very late one night. And it really attacked the dissent that we had circulated over a month before in all kinds of ways. And I remember feeling physically ill when I read it, so I read it and I thought, “Oh God.” And Justice Stevens read incredibly quickly, so about two minutes later, I had an e-mail in my inbox that said, “You know, he didn't lay a glove on us.” And I remember sort of going, “Oh God, I don't actually know that expression.” And so I Googled it, and I was like, “Okay, so he didn't land a punch. That's a boxing expression, right? So that's good.” He didn't actually do anything to sort of call into question sort of the core premises of the draft dissent.
So he thought actually it was fine, but it meant that there were a lot of revisions that ... so Scalia ... The final opinions in Heller, there's a lot of kind of doing battle in the footnotes between the Stevens and the Scalia opinions, but there was much, more sort of an earlier iteration. So it's a, just in the weeks sprinting to the kind of end of the term, it was a lot of revisions back and forth with the sort of two opinions kind of doing battle, both above the line but especially in the footnotes. But he was not able to pick up a fifth vote, and I think that that's something that really stayed with him. He remained really focused on the Second Amendment and the kind of grave error he thought the Court had made in Heller.
Rosen: [00:28:04] Dan, the justice was criticized by some for calling for a repeal of the Second Amendment and for overreading Heller in the sense that Heller seemed to allow some reasonable gun regulations. And many lower courts have upheld them under Heller. Why do you think he felt so strongly about gun control, and are there other issues from your clerkship that he felt especially strongly about that you want to put on the table?
Farber: [00:28:35] I don't know the answer to why he felt so strongly about gun control, and Kate may have more to say about that. I do think that Heller was, apart from the specific subject, kind of an affront to his belief in reasoned decision-making by the Supreme Court and respect for precedent. And from that point of view, I think, sort of like Bush versus Gore, it was a really disturbing opinion from his point of view. The one thing that I remember him being kind of emotionally involved in when I was on the Court was the flag burning issue, which is one where I think he dissented more than once from Supreme Court opinions holding that flag burning was constitutionally protected speech and that federal statutes, or state statutes attempting to ban it were unconstitutional. And he felt very passionately about that. At least at the time, I felt that this was perhaps related to the World War II experience and was something that maybe people of that generation including him had a very different feeling about than say people of my generation.
But he never really, at least at that time, explained the reasons for feeling quite so passionately about it. It was not of course the only time that he disagreed with the majority about a free speech issue, but it's the only time that at least I can recall in which he seemed really kind of emotionally involved in the position he was taking.
Rosen: [00:30:34] Fascinating. He talks in his book, The Makings of a Justice, about his views on flag burning. He does note that his predecessor, Lewis Powell, on the one had was an extremely patriotic veteran of World War II, but on the other hand, supported a liberal reading of the First Amendment, so wondered whether Powell would have agreed with him about flag burning. I should say that I had an unsuccessful courtship interview with Justice Stevens. I had written a note on the unfortunate topic, was the flag burning amendment unconstitutional? And the justice found it preposterous, both that Congress wouldn't have the power to ban flag burning and also that an amendment to the Constitution purporting to ban flag burning might violate the natural rights of free speech.
Kate, what ... You read his remarkable book, The Makings of a Justice. There's so much in it, and it's just I think the most riveting and candid book by a sitting or retired justice about the inside story of the cases decided during his term. What cases and stories leapt out to you as unusually revealing? There's so many we could talk about, from Bush v. Gore to Citizens United, but I'll just let you pick.
Shaw: [00:31:46] Yeah, I mean, I think Bush v. Gore definitely springs to mind. It's a case that listeners will obviously, many will be familiar with, right? The Court intervenes to essentially stop a recount in the state of Florida following the 2000 presidential election and finds for the Bush campaign basically on equal protection grounds. I thought there was a lot that was new in the account of Bush versus Gore. The equal protection argument, just having crept in at the very 11th hour. He basically says there was ... if you look, if equal protection rationale in the final opinion, because there are, there's at least one intervening opinion before the Court sort of issues its final opinion in the case.
But the equal protection argument kind of creeps in at the very end, and he says he doesn't think it was even discussed at conference, right? It just all of a sudden, the majority ... And that's part of I think what he finds so frustrating about the case. And I think he thinks ... Because he's got a line that I think maybe you mentioned, Jeff, in your piece about it and, that he says the Court basically had all of this institutional capital that it accrued generally, but he says specifically in the United States versus Nixon when the Court unanimously directs President Nixon to comply with the subpoena for the Oval Office tapes. And that unanimous 8-0 opinion, right, includes some Nixon appointees and a bunch of Republican appointees, and it just really looked like the Court transcended politics, checked an abuse of power, and it was, I think he thinks, a shining moment for the Court, and that in Bush versus Gore, the Court really squandered that institutional capital, and that it hasn't really recovered from that kind of self-inflicted blow.
And I asked him a little bit about it in our interview. “So talk a little bit more about what it is about those two cases.” And he says, he used the subject matter it's the Court appearing to transcend politics, but it's also just the quality of the reasoning, right? “Bush versus Gore,” he says, “it's even worse than I remembered when I reread it for this book.” And in part, it was an incredibly rushed process, right? So no really sort of fine judicial craft is going to emerge from something as brief and argued repeatedly over the course of a few weeks in December. But he just says that the opinion just doesn't stand up to any kind of scrutiny.
And that's another one that I think he ... I think he was mostly really able when he was on the losing end of a 5-4 case that he thought was super important, to kind of put it behind him and just get up the next day and extend to his colleagues the same sort of goodwill that he always did, and sort of not even in years when he lost a lot of close cases that he cared about, not really get sort of dejected by it or bitter or anything like that. And not that he was dejected or bitter about these two, but I do think that both Heller and Bush versus Gore are cases that he continued to be deeply, deeply troubled by for many, many years.
Rosen: [00:34:27] Thank you for noting that. Justice Stevens did tell you in the great interview that you had, “The majority opinion in Bush v. Gore is even worse than I thought it was at the time. I read it over more carefully working on the book. I found that the opinion is internally inconsistent as well as just not making any sense.” And then in the book he gives this remarkable account of how the Court made a factual error. He says because things moved so fast, he was unable at the time to point out a serious factual error in its misunderstanding of the different versions of earlier rules that forbade the counting of dimpled chads. It's an example of the combination of his extraordinary attention to detail and his frustration with the fact that Bush v. Gore was a result in search of reasoning, which only emerged after the decision was made.
Dan, Citizens United we should talk about. He felt that it was unconvincing legally as a matter of original understanding, unconvincing in terms of precedent given the extensive congressional statutes regulating corporate speech dating back to the Progressive Era, as well as being unconvincing as a matter of reasoning since he believed that not only the appearance of avoiding corruption but also the desire to equalize candidates' election opportunities was sufficient to justify regulation. Tell us more about his dissent in Citizens United and why he cared so much about that issue.
Farber: [00:35:54] Well, I think it's important to remember that he had written the previous decision in McConnell that had really taken completely the opposite approach to regulation of campaign speech than Citizens United, not only in the specifics of the issue of corporate speech, but really in the whole approach. And he had gotten Justice O'Connor to really join him and provide a majority on all that. So I think also his sense of respect for precedent was involved.
In addition, Citizens United was a case in which the majority had to really work very, very hard in order to get itself in a position to be able to make a sweeping ruling, because the parties had not asked for that, if there were narrower grounds available. And so it was also a case of the Court simply kind of flexing its muscles and deciding to change the law, even though it really had nothing to do with the case or the arguments made by the counsel on the case before it.
I think that perhaps his views on these campaign finance issues can also be tied back to the value that you talked about earlier that he placed on impartiality, because I think one of the fundamental concerns in dealing with corporate speech or speech by large donors and so forth is simply that government officials will not be impartial. They will be beholden to campaign contributors, to corporations that have ponied up a lot of money to support them even if not through a direct contribution, or to powerful and rich individuals who supported them. And in fact, the majority seemed to be quite fine with that and seemed to view it as just normal in the operation of government. And I think even apart from some of the specific arguments about what's a compelling interest, what isn't a compelling interest, I think that really violated his sense of the ideal that democratic governments are supposed to be striving for.
Rosen: [00:38:26] Another important theme in his jurisprudence is the need for the judiciary to oversee the executive. And in cases from Clinton and Jones where he allowed the civil suit to proceed to the Boumediene case decided during your term involving the War on Terror, he insisted on judicial oversight of executive overreach. Tell us about Boumediene and his general view about the need for courts to oversee the executive.
Shaw: [00:38:53] Sure, and to step back just a little bit earlier, so in 2006, he writes the opinion in Hamdan versus Rumsfeld. And so from Hamdan to Boumediene, these cases, right, do involve the Court checking the executive, checking presidential power, even here. These cases arose in the context of the War on Terror, and in Hamdan, the justice writes a 5-3 opinion that strikes down President Bush's military commission system. And I think some people were surprised in that, that this decorated sort of war hero, he had been a naval cryptographer, he had won a Bronze Star, he had this military background. And typically, the Commander-in-Chief gets a good deal of deference in matters of sort of military judgment. But there are limits, right? And that's I think the principle that Hamdan stands for, that lots of deference in military matters doesn't mean unlimited deference.
And so in the wake of Hamdan, the Court passes the Military Commission Act, and then a few terms later in 2008, then the Boumediene case, the justice doesn't write but does assign to Justice Kennedy the opinion kind of reaching the constitutional question of whether the writ of habeas corpus is available to detainees at Guantanamo Bay and finding that in fact, it is. So I think that those two cases really do stand for kind of a muscular vision of the Court's role, even in sort of ensuring that basic procedures and fairness are present and that constitutional guarantees don't evaporate, right, even in times of kind of urgent need, or even in the context of urgent assertions of the need to defer to the executive.
Now I think that there's plenty of evidence that the lower courts didn't, in particular the D.C. Circuit, didn't give full expression to kind of some of the principles in those cases. But in terms of Justice Stevens' role and the Supreme Court's role, I think those are really important assertions of the limitations on executive power.
Rosen: [00:40:55] Dan, final question to you. Justice Stevens filed more dissenting and concurring opinions during his time on the Court than I think any other justice. Part of that, he told me in our 2007 interview, was due to his experience investigating corruption in Chicago in 1969 where he discovered that, in the course of investigating whether a judge had thrown a case in exchange for a bribe, one of the judges on the panel had originally written a dissenting opinion, which he had suppressed. And Justice Stevens came to believe that had the opinion been released, then that transparency would have served the cause of justice and avoided the scandal. If you had to pick, I don't know, one or two or three of Justice Stevens' greatest and most enduring dissents, what would they be?
Farber: [00:41:38] Many of his dissents, I think, were particularly eloquent and I think made an effort to appeal to public values. I guess I would also mention his dissent in Bush versus Gore, which I think was very powerful not only in critiquing the flaws in the majority's reasoning, but in also explaining why it was that the Court's decision was deeply inconsistent with the fundamental values of impartiality and use of reason to make decisions even in under the most trying circumstances.
Rosen: [00:42:27] Kate, if you had to name one or two or three of Justice Stevens' greatest dissents, what would they be?
Shaw: [00:42:34] Okay, so he was a great dissenter. He dissented more than anyone else in the history of the Supreme Court, or wrote more separate opinions. I'm not sure about just dissents, but dissents and concurrences. So there are a lot to choose from, but there are a couple that I think spring to mind. One is the dissent in Bowers versus Hardwick, the 1986 case in which the Supreme Court upheld a criminal sodomy statute. And Justice Stevens wrote a powerful, powerful dissent that essentially then became the law in Lawrence versus Texas in 2003 when Justice Kennedy wrote a majority opinion striking down a state sodomy statute, and basically saying Justice Stevens was correct. His view should have carried the day in 1986, and it does carry the day today. Now he didn't write Lawrence, right? He did this sort of, he assigned it to Kennedy. But I think that his dissent in Bowers really did ... pardon me, become law in that case. So I think that is one.
I think a lesser-known dissent of his that I've always thought was really powerful is his dissent in Harris versus McRae, which is a 1980 decision that upholds the constitutionality of the Hyde Amendment. So Roe versus Wade in 1973 finds the right to terminate a pregnancy. But Congress quickly passes a statute saying, “Okay, but if you're an indigent woman receiving Medicaid funds, no federal money can be spent paying for an abortion.” And the constitutionality of that law was challenged, and in 1980, the Court upheld the Hyde Amendment. And it's a 5-4 decision, and there were four separate dissents, but Justice Stevens' I think is an especially powerful dissent.
And let me just mention one that's sort of on a lighter note that is from a 2007 case called Morse versus Frederick but is sometimes referred to as the Bong Hits 4 Jesus case, involved some students who had a sign at a school parade that said Bong ... a sort of inscrutable sign that said Bong Hits 4 Jesus, and then they were suspended for advocating drug use, I guess. And the Court sided with this principal and permitted the suspension, consistent with the First Amendment. And Justice Stevens dissented sort of on First Amendment grounds, but then had this sort of funny aside about the importance of kind of speech about pressing public matters and marijuana policy is one of them. And then he talks about having been a child during Prohibition and there being certain similarities between the nation's current treatment of marijuana that's sort of nominal illegality but widespread use and all this kind of uncaptured tax revenue that could be captured if in fact it was just legalized. And he sort of draws an analogy to Prohibition, which of course he remembers because he was a child during Prohibition.
And so it's just, there's are a handful of opinions in which he sort of makes points that only Justice Stevens, by virtue of having lived through so much of American history, could possibly make, and that was definitely one of them.
Rosen: [00:45:10] Thank you so much Kate Shaw and Daniel Farber for a moving, rich, and meaningful appreciation of one of the Supreme Court's longest-serving and greatest justices. Kate, Daniel, thank you so much for joining.
Shaw: [00:45:23] Thank you so much Jeff.
Farber: [00:45:24] Thank you for inviting us.
Rosen: [00:45:28] Today's show was engineered by David Stotz and Jackie McDermott and produced by Jackie McDermott. Research was provided by the National Constitution Center's constitutional content team. The homework of the week, listen to Kate Shaw's great podcast Strict Scrutiny, and read Daniel Farber's wonderful books, Lincoln's Constitution, I think the best book I've read about Lincoln's constitutional vision, and also Judgment Calls, which he co-wrote with Suzanna Sherry about Supreme Court decision-making. Please rate, review, and subscribe to We the People on Apple Podcasts and recommend the show to friends, colleagues, or anyone everywhere who's hungry for weekly constitutional debate.
And remember, always, dear We the People listeners, that the National Constitution Center is a private non-profit. We rely on the generosity, passion, and engagement of people like you across the country, and across the world, who are inspired by our non-partisan mission of constitutional education and debate. You can support our mission by becoming a member at constitutioncenter.org/membership, or give a donation of any amount to support our work including this podcast at constitutioncenter.org/donate. On behalf of the National Constitution Center, I'm Jeffrey Rosen.