The retired justice's new book mirrors his work on the High Court for 35 years-- steady, courteous and humble
John Paul Stevens' fine new book, Five Chiefs: A Supreme Court Memoir, will likely not make The New York Times' bestseller list for many of the same reasons that the recently retired justice likely won't make the list of all-time great Supreme Court jurists. There is little flashy or bold about either the text or the man; both instead are steady, courteous and humble. The book is a 248-page bow-tie; like its dignified author, and his famous sartorial flourish, an unpretentious but important addition to American history.
It's a pity that general nonfiction readers aren't rushing out to buy Five Chiefs because, at its core, the book is not just another memoir from yet another judge. It marks instead the end of an era on the Supreme Court and in the broader swath of American law and politics. Here are the careful words of the last of the Mohicans, the initial post-Court impressions of the last moderate Republican of the so-called "Greatest Generation" to wield power in Washington, a genteel man whose court (and country) moved far to the right during his last two decades of public service.
Five Chiefs is a practical book, a pragmatic one, much like its author and the hundreds of other federal judges of his generation, who came to the courts, with war experience, from private practice. Justice Stevens has his share of critics-- you don't serve on the High Court for 35 years without breaking some eggs-- but no one will fairly portray him as an ideologue or polemist either in his temperamant or his jurisprudence. He is the last living justice to be born in the 1920s (1920, to be exact) and it shows in the tone and tenor of this book. Remember the good old days when more of our public officials were like this?
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Since his retirement in June 2010, Justice Stevens often has passionately voiced his views on contentious legal and political issues. His piece on the teetering constitutional underpinnings of the death penalty, published last fall in The New York Review of Books, was a profoundly important and timely bit of work. It is clear, wonderfully clear, that he has chosen the path taken by his former colleague, Sandra Day O'Connor, who has been a forceful advocate for judicial independence and civics scholarship. It is a good thing, a vital thing, that our retired justices want to stay active in the public life of the country.
In Five Chiefs, however, Stevens' focused eye gives way to a hundred or so smaller points, some densely legal, some historical, some even funny. When the outside line would ring inside the Court's conference room during sessions-- obviously a wrong number-- Justice Byron White would invariably answer "Joe's bar." Funny guy, the Whizzer, except for Bowers v. Hardwick. And did you know each justice still has a metal spittoon near her/his chair in court? (Memo to administrators: put those suckers up on E-bay and use the proceeds to give trial judges a raise.)
Although Justice Stevens takes a few pot shots here and there-- at Justice Thomas, at the late Chief Justices William Rehnquist and Earl Warren-- the book is free of any arguments directed toward the reader or against a particular person. Stevens is happy to tell you what he thinks of some of the most important and interesting (to him, anyway) cases that came across his desk over the years. And he's quite willing to tell you which justices he thinks got the law wrong. But he's not interested, at least not in this book, in trying to convince you that he's right. Hopefully, that will come in the next book. Or the one after that.
Calling it "inside baseball at its best," the legal scholar Geoffrey Stone has written a good review of the book here. It is worth reading for the details of the "shots" I reference above. There is what journalists call "inside baseball" in the book-- details about the Court's history and practices that Court junkies will savour and that general readers will likely find charming. As of 2010, evidently, the place is still run like the prestigious law firms of our youth, an anachronism almost as jarring (and as endearing) as a judge who still calls the copier a "Xerox machine."
But there is more than just "inside baseball" here. People all the time talk about wanting to understand how a good judge thinks. The Senate Judiciary Committee even held a hearing on the topic last week. If you want to know how a judge thinks just read Five Chiefs. You get the sense that the author has restrained himself in the expression of his views. You never feel like any word, sentence or argument has been rashly posed. And even if you, the reasonable person, end up disagreeing with the text's conclusions you appreciate and respect the effort at the logic behind them.
For example, it surely is not news to anyone following the law or the Court that Justice Clarence Thomas is no Justice Thurgood Marshall, the man he memorably replaced in 1991. Stevens addresses the thorny matter directly:
The importance of the change in the Court's jurisprudence that is directly attributable to the choice of Clarence Thomas to fill the vacancy created by Thurgood's retirement cannot be overstated. I discuss one example of Clarence's impact-- his writings on the Eighth Amendment-- toward the end of this book. More generally, decisions made by five-to-four votes in which Clarence was a member of the majority are evidence of that importance because I am convinced that Thurgood would have voted with the four dissenters in most, if not all. of them.
While Thurgood's jurisprudence reflected an understanding that the Constitution was drafted "to form a more perfect union"-- and thus to accomodate unforseen changes in society-- Justice Thomas's repeated emphasis on history analysis seems to assume that we should view the Union as perfect at the beginning and subject to improvement only by following the cumbersome process of amending the Constitution.
Then Stevens cites three gun rights cases -- United States v. Lopez, Printz v. United States and District of Columbia v. Heller -- which he believes would have come out differently had time stood still, Justice Marshall lived on in good health, and Justice Thomas remained a lower court judge. His analysis of these three cases, and of the ties between Justice Thomas' work in them and Stevens own prior work, is alone worth the price of the book. In any event, Stevens reminds us, exactly 20 years later, of the seismic rightward shift that occurred the day Thomas joined the Court.
It's good to have such reminders. Just five years ago, the Court took another large step to the right when Justice Samuel Alito replaced Justice Sandra Day O'Connor, a trade of Republican appointees that effectively moved the Court's center from the moderate O'Connor to the conservative Justice Anthony Kennedy (another Republican appointee). Thanks to that switch, you can add the Citizens United case from January 2010-- and perhaps that federal health care case coming this Term-- to Stevens' list above. Maybe he'll tackle that shift, too, in his next book.
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It's hard to imagine any of the current justices writing a book like this upon retirement. Some, like Justices Antonin Scalia and Ruth Bader Ginsburg, would likely be unable to control their partisan passions. Their books would read more like lawyer's briefs than judicial opinions. Some, like Justice David Souter, would likely be too reticent to share with his loyal readers his impressions of some of the inner workings of the Court. Besides, I think we've already heard Justice Souter's grandest words on the grandest of constitutional topics.
Justice Thomas already has writtten his memoir-- doesn't he want to wait to see how his judicial story ends?-- and the two newest justices, Sonia Sotomayor and Elena Kagan, will bear their own crosses when their work on the Court is done. Justice Kennedy could conceivably write a quick Court-centric memoir like this; that he is often a target of conservative criticism surely is a subject worth exploring. But if Justice Kennedy lasts 35 years on the Court before retiring it will take us to 2023 and who knows what'll matter then?
No, Five Chiefs is the right book at the right time. It's a brief and largely defanged reminder of some of what we have lost in public life with the demise of the "moderate Republican' on Capitol Hill and the "practical conservative" on the federal bench. It's not that they don't make men and lawyers like John Paul Stevens any more. They do. It's just that Washington and the rest of the country don't seem to have much use for them these days.