The Justice's new autobiography gives us a rare glance into the Supreme Court, but too little insight into his own compelling life
Ten years ago, I attended a lecture at Duke Law School by Chief Justice William Rehnquist. The talk had been billed by the law school as the first in its "Lives in the Law" series, which seemed to promise personal insights from a man who had moved the law so far in his decades on the bench.
Instead, the Chief Justice gave his ever-popular lecture, "The Chief Justices of the United States" -- a slide-by-slide, term-by-term review of the lives and opinions of his 15 predecessors, most of them justly obscure. (Discuss the influence of Chief Justice Edward D. White on American law, please.) On and on the slide show marched, until members of the official platform party were visibly struggling to remain conscious.
You can say what you want about Bill Rehnquist; but the man knew how to stay out of trouble. He bored many a listener, but never once in his tenure, to my knowledge, did he ever make an off-bench comment -- much less, like his colleague Antonin Scalia, an indecent Sicilian hand gesture -- that produced a flap.
But I also suspect that Rehnquist truly didn't understand how paralyzingly dull his lecture was. After decades in the Court's orbit, its marble palace must come to seem, like Jorge Louis Borges's Library of Babel, the entire universe; even the minutiae of its history and operation must come to seem fascinating.
A reader of the first half of Five Chiefs might be forgiven for thinking he had stumbled into another hellish version of the Rehnquist lecture. John Paul Stevens, as we all know, is an interesting man who has lived an interesting life. His father was imprisoned, and later exonerated, for embezzlement; as a 12-year-old, he was in the stands when Babe Ruth hit the famous "called shot" home run. He met famous aviators and later owned and flew his own plane. Most of all, he served on the Court longer than all but two of the Justices who ever lived.
Not much of this story makes it into the first half of Five Chiefs. We learn something about Stevens's law practice, and a great deal of minutiae about the Court. (Example: "Except for the few cases on what was called, in the Vinson period, the summary docket, each side was allowed a full hour for argument. What is now a two-hour morning session beginning at 10:00 was, when Vinson was chief, a session that began at noon and lasted until 2:00 p.m. There was then a half-hour luncheon break before the Court reconvened at 2:30, meaning that hungry justices sometimes ate a little too much and found it difficult to remain alert during the afternoon session, which lasted until 4:30.")
I suspect that only those who literally live inside the Court will relish this part of Five Chiefs. But the book comes alive when Stevens ascends to the Court. There are no shocking revelations, but the descriptions of Warren Burger, Bill Rehnquist, and John Roberts, are carefully etched and enlightening. Stevens reinforces the general sense of Burger as an ineffective and choleric Chief, simply not up to the task of keeping track of colleagues' positions and given to bungling the assignment of opinions; but Stevens also makes a surprisingly strong case for Burger's jurisprudence. He notes Rehnquist's relentless conservatism but praises him as an efficient if rigid leader who responded to other Justices' complaints with a cheerful, "tough tacos."
And he beams at the performance of John Roberts as presiding officer -- better than either Burger or Rehnquist, he suggests -- while hopefully pointing to signs of centrism in the new Chief's jurisprudence. He suggests that Roberts' concurrence in Graham v. Florida, which held that the Eighth Amendment forbids a sentence of life without parole for juvenile crime, "is significant because it rejects a narrow interpretation of the Eighth Amendment -- and, more important, the kind of reliance on original intent as a method of interpreting the Constitution -- that Chief Justice Rehnquist and Justice Scalia espoused." Though he gently chides Roberts for his vote in Citizens United, he also concludes that Roberts' orthodox First Amendment opinion in Snyder v. Phelps, the Westboro Baptist Church case, signals a movement away from the muddled authoritarianism of Morse v. Frederick (the "Bong Hits 4 Jesus!" case).
It's in the First Amendment area that Stevens most forcefully reminds us that, despite conservative vilification, he is not now and never has been a liberal. His free-speech jurisprudence was always hesitant and prudish; he was repulsed by George Carlin's brilliant "Filthy Words" monologue, and wrote the famously wrong-headed sentence "few of us would march our sons and daughters off to war to preserve the citizen's right to see 'Specified Sexual Activities' exhibited in the theaters of our choice." He still stoutly insists that the flag-burning cases were wrongly decided: "The law would have allowed the defendant to express his hatred of the flag in many other ways, but it would not have allowed him to shoot or to assault a soldier carrying a flag to express his hatred."
That's true enough, I might say to a first-year student, and would be useful -- if the flag were a human being. It isn't; but Stevens is. We glimpse enough of the man -- self-confident, kind, curious, adventurous -- to make me, at least, hopeful that, having warmed up with this reticent finger exercise, he will now turn to a true autobiography.
That would be a life in the law to be remembered when the five Chiefs are as distant as Edward Douglass White.
Five Chiefs: A Supreme Court Memoir by John Paul Stevens. Little Brown & Co. 304 pages. $24.99.
This article available online at: