A Supreme Difference

1.

In 1936, in United States v. Butler, a 6–3 majority of the Supreme Court held unconstitutional the Agricultural Adjustment Act of 1933, a New Deal measure to support farmers devastated by the Depression. The dissent, by Justice Harlan F. Stone, said that the majority’s reasoning was

addressed to the mind accustomed to believe that it is the business of courts to sit in judgment on the wisdom of legislative action. Courts are not the only agency of government that must be assumed to have capacity to govern.

Ancient history? Until recently one would have thought so, of the Butler case and others striking down Franklin Roosevelt’s efforts to deal with the Depression. For in 1937, in NLRB v. Jones & Laughlin, two justices changed their position and the Supreme Court abandoned the attempt to hold the government powerless to act against national economic disaster.

But now those pre-1937 decisions of the Court do not look so dusty. Once again we have headstrong conservative justices on the Supreme Court, eager to impose their vision of governance. In a suit that will reach the Court in a year or two, Republican state attorneys general are challenging the recently enacted health care law as beyond federal power: a claim reminiscent of the rationale of the decisions before 1937.

The justice who set the Court on its radical turn to the right is Antonin Scalia, the subject of Joan Biskupic’s fascinating biography, American Original. For years after his appointment by Ronald Reagan in 1986, Justice Scalia was often a loner, uncompromising in his views and seemingly unconcerned—indeed pugnacious—in his failure to enlist colleagues. Then, in 1991, Justice Clarence Thomas joined the Court, appointed by George H.W. Bush, and he almost unfailingly agreed with Scalia. In 2005 President Bush chose John Roberts as chief justice and Samuel Alito as an associate justice—both far to the right.

Chief Justice Roberts in particular made a profound difference. He came to the Court with the most definite political program of any appointee in generations: enlarge the power of the president, destroy affirmative action, support corporations. There were now four almost-certain votes for conservative outcomes, and Justice Anthony Kennedy often added a fifth. The way was open for decisions like Citizens United v. FEC in January 2010, which ended limits on corporate political spending.¹

But Scalia remains the most interesting of the conservatives, the most provocative. He does not hesitate to be sarcastic, even contemptuous, about his colleagues when he disagrees with them. When Justice Sandra Day O’Connor disappointed him in 1989 by not providing the fifth vote to overrule the abortion decision Roe v. Wade, he wrote in dissent that her rationale “cannot be taken seriously.”

When, a few months earlier, the Court upheld the post-Watergate statute allowing the appointment of independent counsels to investigate executive branch wrongdoing, Scalia was the lone dissenter. He saw the law as an infringement on the president’s power to control the executive and said that it created a new branch of government, “a sort of junior-varsity Congress.” His language seemed shrill, but Kenneth Starr’s out-of-control impeachment investigation of President Clinton a decade later proved Scalia’s doubts prophetic.

Biskupic traces the roots of Scalia’s conservatism. His family was Roman Catholic on the conservative model of the Church before Vatican II, with the mass in Latin and the congregation not actively participating, and Scalia has held to that view. He and his family attend a church that celebrates the mass in Latin, and he told Biskupic in a 2008 interview that Vatican II was “not on my hit parade.” He attended a Jesuit high school for boys in New York where all students took part in junior ROTC.

After Harvard Law School he was drawn to the government in the period after Watergate when, Biskupic says, an “authoritarian bent” encouraged by church, family, and school “fostered his concern for…encroachments on the presidency.” As head of the Justice Department’s Office of Legal Counsel under President Ford he wrote an opinion saying that Richard Nixon’s texts and papers remained his property after he resigned the presidency; Congress overruled that view in a statute. He also helped persuade Ford to veto amendments to the Freedom of Information Act making it easier to penetrate government secrecy; Congress overrode the veto.

Scalia has had a skeptical view of the press for decades, deriding its claim to have a crucial checking part in democracy as a cover for “gotcha” exercises. He has been strongly critical of the 1964 Supreme Court decision in New York Times v. Sullivan, which extended First Amendment protection to statements challenged as libelous. He said, “The Court made up a new libel law.”

Affirmative action to try to alleviate the effects of discrimination against black Americans over the decades has been a special target of Scalia’s animus. In 2003 the Supreme Court, by a vote of 5–4, upheld a University of Michigan Law School program that modestly increased the number of successful minority applicants. Military leaders had joined in a friend-of-the-court brief favoring the program. Justice O’Connor, writing for the majority, reflected the argument of that brief when she said, “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.”

Dissenting, Scalia mocked the ideas of diversity and “cross-racial understanding.” He said, “This is not, of course, an ‘educational benefit’ on which students will be graded on their Law School transcript (Works and Plays Well with Others: B+) or tested by the bar examiners (Q: Describe in 500 words or less your cross-racial understanding).” Writing more seriously in a 1995 separate opinion, he said:

Under our Constitution there can be no such thing as either a creditor or a debtor race. That concept is alien to the Constitution’s focus upon the individual. To pursue the concept of racial entitlement—even for the most admirable and benign of purposes—is to reinforce and preserve for future mischief the way of thinking that produced race slavery, race privilege and race hatred. In the eyes of government, we are just one race here. It is American.
With views that might have been designed to scandalize liberal-minded people, one might expect Scalia to be thoroughly disliked by lawyers and judges he has not hesitated to scorn. But that is far from universally true. Justice Ruth Bader Ginsburg told Biskupic how she felt after first meeting him: “I was fascinated by him because he was so intelligent and so amusing. You could still resist his position, but you just had to like him.”

Or consider an excerpt from a speech by Scalia in 1984 that Biskupic uses as an epigraph. The conflicts with which lawyers deal, Scalia said, “tend, as Charles Lamb suggested, to shatter the illusions of childhood rather quickly. Hence the image of the lawyer as the skeptical realist. Expect to find here no more a dreamer than a poet…. Billy Budd, Pollyanna, and Mr. Micawber could never have been lawyers.” How many judges would cite Billy Budd?

In describing Scalia’s views, Biskupic is detached. She avoids taking sides, leaving it to the reader to react with outrage or pleasure at his sallies. That is admirable in its way. But I have to admit to longing for the author to make some judgments. That is especially true of the doctrine that Scalia has proclaimed as central to his constitutional decisions: that the Constitution should be read according to its original meaning—the original understanding of its framers. Only a commitment to that doctrine, he argues, can prevent the Supreme Court from being a freewheeling body that can read whatever it wants into an eighteenth-century document.

The simplicity of the doctrine is appealing. It seems to promise certainty: a sure answer to the hard questions that bring cases to the Supreme Court. Just find out what James Madison thought about burning the flag as a form of political expression protected by the First Amendment, and go on to the next case.

Alas, it is seldom possible to know with assurance what the delegates to the Constitutional Convention of 1787, or the hundreds at the state ratifying conventions, thought about the particular issues that arise today. So far as we know, Madison did not think about the question of flag-burning. Nor is the answer to be found in the spacious text of the First Amendment: “Congress shall make no law…abridging the freedom of speech, or of the press.” What Scalia might say, correctly, is that Madison, the principal author of the amendment, had a very broad view of freedom of expression. But that general truth does not advance the specificity claimed by originalism.

The very spaciousness of so much of the Constitution’s language—freedom of speech, due process of law, and the like—was evidently designed to assure that its clauses would be applied to, and would survive, changing circumstances. Chief Justice John Marshall said in 1819, in McCulloch v. Maryland, that the Constitution was “intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs.”

The idea that cases can be decided with certainty on the basis of what was understood in 1787 is not simple but simpleminded. I do not doubt that Justice Scalia believes it when he praises that notion. But in fact he does not apply it constantly. For example, he provided the fifth vote for Justice William J. Brennan Jr.’s opinion in 1989 that burning the flag as a form of protest was protected by the First Amendment.

A more egregious example of Scalia’s disregard for “original meaning” was the decision in Bush v. Gore in 2000, awarding the presidency to George W. Bush. The presidential election process described by the original Constitution left it to each state to decide its electoral vote. No case, no precedent, no original understanding gave the Supreme Court the jurisdiction—the authority—to consider, much less condemn, the process that the Florida courts were following to decide Florida’s vote. Justice Scalia said early on that Bush was entitled to an injunction against recounting of the Florida ballots because he had a lead of a few hundred votes. Would he have taken the same view if Al Gore had led by a few hundred and sought to stop recounting? My respect for the Supreme Court makes me reluctant to say this, but I see no escape from the conclusion that Bush v. Gore was a political decision.

Race is an illustration of how unhelpful the idea of original meaning can be. The campaign to end affirmative action achieved an important success in 2007, when the Court, in opinions by Chief Justice Roberts, found that voluntary programs in Seattle and Louisville to help keep school populations from becoming less diverse violated the Equal Protection Clause of the Fourteenth Amendment. To exclude a white applicant as a result of the diversity effort was racial discrimination, the 5–4 majority said. That could be a legitimate political argument against adopting such a program. But as a constitutional argument it has to reckon with the fact that a specific reason for adoption of the Fourteenth Amendment—the original meaning—was to assure a constitutional basis for Congress to pass civil rights acts advancing the rights of former slaves.

One more point needs to be made about Justice Scalia. He can be hyper- bolic—indeed nasty—in the assertion of his views, and observers seem to overlook that, as if he were entitled to cross the lines of mutual respect. When the Court in 1996, in Romer v. Evans, struck down a Colorado law forbidding localities to adopt ordinances barring discrimination against homosexuals, Scalia’s dissent had a venomous quality. He said that the Colorado law was an effort to “preserve traditional sexual mores against the efforts of a politically powerful minority” that had “high disposable income.” Reading his opinion from the bench, he accused the majority (in an opinion by Justice Kennedy) of signing on to the “so-called homosexual agenda.”

Scalia has paid a price for his pugnacious rigidity. He is what Biskupic says in her punning title, an original—and her portrait of him is masterful. But the men and women who are given the power of judicial independence become great judges by listening and learning and deepening in their understanding. Scalia’s relentless restatement of his ideology approaches narcissistic self-indulgence. Think what this highly intelligent and educated man could have achieved as a judge if he had not fixed his star to a single unconvincing legal theory.

2.

John Paul Stevens, who is about to retire after thirty-five years on the Supreme Court, is at the opposite pole from Scalia as a judge. Far from having an ideological agenda or a rigid theory of constitutional adjudication, he is a powerful example of the independent mind. I think his closest recent model is Justice John Marshall Harlan; like Harlan he is often unpredictable. Reading a Harlan or Stevens opinion, one could sometimes imagine the judge wrestling his way, without a preconception, through the facts and the law to a conclusion.

Stevens rejects the proposition that the open phrases of the Constitution have specific meanings fixed in 1787. When the Court changed its previous view and held that execution of anyone under eighteen was an unconstitutional cruel and unusual punishment, he said: “That our understanding of the Constitution does change from time to time has been settled since John Marshall breathed life into its text.”

The authors of John Paul Stevens: An Independent Life are not Supreme Court specialists like Biskupic, who is a longtime reporter at the Court. Bill Barnhart was a columnist and editor for the Chicago Tribune for nearly thirty years; Gene Schlickman is a retired lawyer who served eight terms in the Illinois legislature. They have filled out their knowledge of the Supreme Court with diligent research and interviews. But their special contribution is the light they shine on Stevens’s years before he went on the Court.

Baseball, in a manner of speaking, led Stevens to the Supreme Court. He was a promising but little-known lawyer in the 1950s in Chicago, an antitrust specialist who had been a law clerk to Justice Wiley B. Rutledge of the Supreme Court. Then he joined the Republican minority staff of the House Judiciary Committee for an investigation of organized baseball ordered by the Democratic chairman, Emanuel Celler. In the summer of 1951 there were public hearings—well publicized, as Celler had expected—that focused on baseball’s standing exemption from the antitrust laws. John Paul Stevens examined such notable witnesses as Ty Cobb (he did not think that the legal monopoly had improved the quality of the game) and Philip K. Wrigley, president of the Chicago Cubs. (Stevens was a Cubs fan.)

His public role in the baseball hearings probably had a part in Stevens’s selection almost twenty years later for a difficult job, as counsel to a commission set up by Illinois bar associations to investigate charges that two state supreme court justices had taken bribes. The charges came from Sherman Skolnick, a man described by Barnhart and Schlickman as an “unrelenting civic scold.” At first few took his claims seriously. But Stevens found damaging evidence. He and the commission concluded that the two justices had engaged in acts of impropriety and said that they should leave the court. They resigned.

Neither then nor afterward did Stevens seek a judicial appointment, Barnhart and Schlickman write. Nor did he have political associations or backing. Senator Charles Percy of Illinois recommended him to the Nixon administration when a vacancy arose on the United States Court of Appeals for the Seventh Circuit. But at first Stevens told Percy that he did not want the appointment. He urged the senator to ask again in six years, after he had paid for his children’s education. Percy described what followed in a 1998 oral history interview:

I said, “Look, John, in six years I may not be senator. In six years we may not have a Republican president, either. In six years, you ought to be on the Supreme Court.”… He then accepted the next day.

The Senate approved Stevens’s nomination to the Seventh Circuit after a perfunctory one-day hearing before the Judiciary Committee. He took his seat in 1970 as a vaguely Republican nominee but without a real political résumé or known legal ideology. And so he remained.

One case from Stevens’s six years on the Seventh Circuit is striking. It concerned a Catholic priest, James Groppi, who led a group of antipoverty demonstrators who disrupted a session of the Wisconsin legislature. The state assembly ordered Groppi to be jailed summarily, without a hearing, for contempt. A federal trial judge blocked the order on the ground that Groppi was constitutionally entitled to respond to the charges against him. But on appeal, a majority of the Seventh Circuit reinstated the contempt order, saying that a public trial of the charges “could easily become a favorite tool in the politics of confrontation and obstruction.”

Stevens dissented. Years later, in a speech to Chicago lawyers, he said that when considering that dissent he remembered Senator Percy’s remark about going on to the Supreme Court. When Percy made it, he said,

I did not place any weight on that suggestion, but when the Groppi case confronted me, I knew that a published dissent would definitely foreclose any such possibility. The collateral benefit of that dissent for its author was immunity from the risk that thoughts about future advancement might subconsciously affect my work on the bench.²

If Nixon had remained president for the rest of his elected term, until 1977, Stevens’s dissent would indeed have kept him from the Supreme Court. Nixon had scribbled “good” next to a news report of the Wisconsin contempt order against Father Groppi. But when the chance arrived, in 1975, Gerald Ford was president. Ford decided to seek no political advantage in filling the vacancy and relied for advice on his nonpolitical attorney general, Edward Levi, the former president of the University of Chicago. Levi and the President saw Stevens as a nonideological choice. In 2005 Ford wrote in a letter:

I am prepared to allow history’s judgment of my term in office to rest (if necessary, exclusively) on my nomination thirty years ago of John Paul Stevens to the US Supreme Court.

The nomination stirred little fuss at the time; Stevens was confirmed unanimously by the Senate after a low-key committee hearing, not televised. And for years he seemed a low-key member of the Supreme Court. He wrote many concurring and dissenting opinions on his own, apparently not seeking to attract other votes for his views. Most observers would have said that his was a quiet voice.

But there was passion in Justice Stevens. It came out explosively, as Barnhart and Schlickman show well, in the case of Gregory Johnson, who in 1984 burned the American flag and was convicted in Texas of desecrating “a venerated object.” Johnson was represented before the Supreme Court by William Kunstler. At the oral argument Justice Stevens asked Kunstler whether the government had “any power at all to…regulate how this flag is displayed in public places,” Kunstler said he did not believe so. “There is no state interest whatsoever?” Stevens asked. “I don’t see any,” Kunstler answered. Stevens: “I feel quite differently.”

The Court decided, 5–4, that the First Amendment protected Johnson’s act as symbolic speech. Justice Stevens read his dissent from the bench, his face flushing with emotion:

The ideas of liberty and equality have been an irresistible force in motivating leaders like…the Philippine Scouts who fought at Bataan, and the soldiers who scaled the bluff at Omaha Beach. If those ideas are worth fighting for—and history demonstrates that they are—it cannot be true that the flag that uniquely symbolizes their power is not itself worthy of protection from unnecessary desecration.

With his commitment to freedom of speech, Stevens might have been expected to agree with the author of the majority opinion, Justice Brennan, who concluded a follow-up flag-burning case a year later by saying, “Punishing desecration of the flag dilutes the very freedom that makes this emblem so revered, and worth revering.” But it was not just the judge speaking in dissent. It was the former Navy cryptographer who in the years after December 7, 1941, worked at Pearl Harbor breaking Japanese naval codes.

Over the last ten years of his service on the Court, Stevens became less an individual voice than a leader of the liberal justices, often though not always in dissent, resisting the movement to the right. When he announced his retirement in April, some commentators suggested that he had become less of an independent voice and more consistently liberal because he had been rethinking his views on the Constitution and the law. He did undoubtedly grow in understanding over the years, but I think there was a further reason for his changed role. It was his profound commitment to the institution of the Court—and his feeling that the increasingly unrestrained radicalism of the conservative bloc was threatening the institution.

That concern was evident in his dissent from the decision in Bush v. Gore in 2000. “Although we may never know with complete certainty the identity of the winner of this year’s Presidential election,” he wrote, “the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.”

Concern for the Court’s role also had a large part in Stevens’s last great statement as a justice, his dissent in Citizens United this past January. As the case came to the Supreme Court, no party asked the justices to reexamine the century-old doctrine allowing regulation of corporate political spending. The Court itself posed that question when, last year, it called for reargument of the case. “Essentially,” Stevens wrote in his dissent, “five justices were unhappy with the limited nature of the case before us, so they changed the case to give themselves an opportunity to change the law.” He concluded that not only did the decision allowing unfettered campaign spending by corporations threaten “to undermine the integrity of elected institutions across the Nation” but that the path taken by the Court to its decision “will, I fear, do damage to this institution.”

One consistent theme in Stevens’s judicial life has been resistance to concentrated power. He wrote for the Court in 1998 when it struck down the line-item veto, which had effectively transferred power from Congress to the executive. And he wrote for the majority in 2004 in Rasul v. Bush, rejecting the Bush administration’s claim that it could detain prisoners at Guantánamo indefinitely, without judicial review by means of petitions for habeas corpus. The issues in the two cases were very different. The fear of power was the same—and the same fear that motivated many of the delegates at the Convention of 1787.

Barnhart and Schlickman rely too much on citations of law review articles and other individual comments. But they also did a lot of their own interviewing and research, and they have produced an intriguing look at a judge little known to the public but crucial to our constitutional structure.

The question that John Paul Stevens leaves for us is the same one that Justice Stone posed so bleakly in his dissent in the Butler case in 1936: Who governs this country? In 1936 the question led a year later to a constitutional crisis, the dispute over Franklin Roosevelt’s ill-judged Court-packing plan. Today we have to hope that the voices of Justice Stevens and others will slow the rush of judicial radicals to remake America in their conservative vision. That is a hope that will soon be tested during the hearings on Elena Kagan.

—May 12, 2010