Portrait of Judge John Paul Stevens
THE MOST SENIOR ASSOCIATE Supreme Court justice might reasonably be called the “second among equals.” I began to occupy that status when Harry Blackmun retired, in 1994. The duties associated with the position are identical to those performed by every other associate justice, with two exceptions: he or she must sometimes substitute for the chief when the chief is unavailable and also must often assign the preparation of Court opinions when the chief is in dissent.
The unavailability of the chief may result from his disqualification in particular cases, from illness that prevents his participation while he is unable to come to Court, or, of course, from his death. For all three of those reasons, I presided over a significant number of oral arguments and conferences during the final year of Bill Rehnquist’s tenure as chief. With one exception, I do not remember that additional responsibility as having made any significant change in the burdens associated with my regular job.
The one exception occurred in January of 2005, when we did not know whether Bill’s developing cancer would make it impossible for him to administer the oath of office at the second inauguration of President George W. Bush. Sally Rider, his highly competent administrative assistant, provided me an especially legible copy of the oath and asked me to be prepared to act as a substitute if necessary. On the cold morning of January 20, I memorized the oath and carried a copy in my pocket when all of the members of the Court except for Bill paraded onto the Capitol platform as the national television audience watched. A seat on the platform had been reserved for Bill, but Sally did not yet know whether he would arrive in time to participate. Just moments before the ceremony began, while I was reaching into my pocket to make sure my copy was available, Bill did arrive, and he did administer the oath; he departed promptly after doing so. At the luncheon in the Capitol after the ceremony, President Bush graciously commented on Bill’s dedication even though Bill was not present.
President-Elect Barack Obama and Vice President–Elect Joe Biden visit the Supreme Court on January 14, 2009. Pictured in the Justices’ Conference Room from left to right: President-Elect Barack Obama, Chief Justice John Roberts, Justices Stevens and Ginsburg, Vice President–Elect Joe Biden, and Justices Souter and Kennedy. Photograph by Steven Petteway, Collection of the Supreme Court of the United States.
Justice Stevens administering the oath of office to Vice President–Elect Joe Biden on January 20, 2009. Photograph by Karen Ballard / Presidential Inaugural Committee.
Four years later, Joe Biden, who as a senator in 1975 had voted for my confirmation, honored me by asking me to swear him in as vice president. The nine inaugurations that I have attended have all been emotional events. In 1976, when Jimmy Carter replaced Gerald Ford as president, my emotion was a combination of regret that the voters had failed to appreciate Ford’s leadership in healing the wounds caused by the Watergate scandal and pride in the fact that the change in power in our great country was being governed by the rule of law. In 2008, the emotion was the jubilation and pride shared by the sea of people stretching from the Capitol to the Lincoln Memorial who were witnessing the inauguration of our first African American president. That it was a glorious day for countless members of both political parties is confirmed by the remarks made by the outgoing President George W. Bush in the Rose Garden after the election:
No matter how they cast their ballots, all Americans can be proud of the history that was made yesterday. Across the country, citizens voted in large numbers. They showed a watching world the vitality of America’s democracy, and the strides we have made toward a more perfect union. They chose a President whose journey represents a triumph of the American story—a testament to hard work, optimism, and faith in the enduring promise of our Nation.
At the inauguration ceremony, before the new president arrived but after most of the invited dignitaries, including George and Laura Bush, had been seated on the platform, Mrs. Obama and her daughters, Malia and Sasha, arrived and greeted the Bushes with real warmth. They had been guests at the White House shortly before, and I had the strong sense that the girls genuinely liked the Bushes and were not just being nice because their parents had told them to be.
I was proud to participate in that momentous event and thought of Bill while doing so.
The only new knowledge that I acquired while presiding at oral arguments is how easy it is for the chief to keep track of the time that remains for the petitioner’s lawyer when he or she arises and begins her rebuttal. The chief is always able to give her that information because the marshal meticulously watches the time and has an assistant provide the chief with “time remaining” notes as the argument progresses.
My most significant memory about making assignments of majority opinions when the chief was in dissent is one of satisfaction with a result that I believed to be just. A dissenting judge is never happy, because it is obvious that either the majority has come to the wrong conclusion or his own reasoning is flawed. There are times, however, when a member of the majority may be unhappy about the outcome because he or she may disagree with the result that the law requires. As Thurgood Marshall observed on more than one occasion, the Constitution does not prohibit Congress from enacting stupid laws.
On the relatively few occasions when I had majority opinions to assign, Bill Rehnquist and John Roberts followed the practice of allowing me to make my assignments before they assigned the other majorities. That practice was courteous to me and it also made it easier for them to make an equitable disposition of the other assignments. I seldom, if ever, made an assignment without asking my first choice about his or her willingness to take on the task. And there were few, if any, occasions when my preferred author voiced any objection.
The task of assigning majority opinions is much less burdensome for the “second among equals” than for the chief justice because he or she has relatively few opinions to assign and is not confronted with the need to distribute the work equitably among all nine justices. My principal guideline in making assignments was my judgment about which eligible author would produce the best draft. There were occasions when I kept assignments for myself either because I felt that I had learned some things about a case that I wanted to emphasize in an opinion or because keeping a case or two for myself avoided the risk of receiving a less desirable assignment from the chief. My memory of certain earlier assignments may also have influenced my choice in a few instances.
For example, cases raising First Amendment issues are typically the subject of extensive coverage in the press. I had the impression that Warren Burger would assign the opinions in such cases to himself when the First Amendment claim was vindicated but to Byron White when the opinion would receive a hostile reception on the editorial pages. That practice contributed to Byron’s reputation in the press as an enemy of the First Amendment. Because of that history, I tried to avoid assignments that might be interpreted as associating a particular justice with a particular issue.
In cases in which the Court was almost evenly divided, Warren Burger would often assign the opinion to the justice who had the most doubts about the outcome. His reasoning, I believe, was that even if the author changed his mind while drafting the opinion, he would presumably still be able to speak for the Court because the original dissenters would be likely to join his opinion.
I thought that practice wise for a quite different reason. As a practicing lawyer I often began my representation of a client with uncertainty about the validity of his or her position but found that my efforts to justify that position convinced me that it was absolutely right. As a justice there were a few occasions when I changed my mind about the outcome while I was working on the draft of an opinion, but much more frequently I became even more certain that I was right as the drafting process progressed.
In addition to following Warren Burger’s example, I also frequently reflected about what I thought at the time was an unwise assignment by Justice Brennan shortly after Justice Kennedy joined the Court. The case of Patterson v. McLean Credit Union presented us with the question whether racial harassment of Patterson, a black employee, violated a federal statute (42 U.S. Code Section 1981) prohibiting “racial discrimination in the making and enforcement of private contracts.” The court of appeals had ruled that conduct that occurred after the contract was formed did not violate the statute. The case was argued twice. At the conference after the first argument, Justice Kennedy voted against Patterson, but the majority decided to have the case reargued to evaluate whether an earlier decision interpreting Section 1981 to apply to private contracts as well as public contracts should be reconsidered. After the second argument, Justice Kennedy changed his mind and was one of the five justices voting in Patterson’s favor. Instead of assigning the majority opinion to Justice Kennedy—who obviously had had difficulty with the case—Justice Brennan assigned the opinion to himself. Rather than persuading Justice Kennedy to join, however, the draft must have revived Tony’s doubts, for he changed his mind again and ended up writing the majority opinion ruling against Patterson. Congress later overruled that decision by enacting the Civil Rights Reform Act of 1991. Even though Tony might well have written the same unfortunate opinion if Bill had assigned the majority to him, a lesson that I learned while practicing law convinced me that it would have been wiser to ask him to draft the final explanation for his vote at conference.
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 mission, 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.