When Bad Things Happen to Good Future Judges

Elena Kagan's B-minus in a first-year torts course sounds like overcoming trauma, Harvard Law-style. Defining adversity down? Actually student lore attributes a huge importance to first-year grades (especially given their impact on plum internships), so Kagan's success does suggest impressive resilience -- whatever that means for being a Justice with life tenure. It did signify enough for William O. Douglas to lie about (among many other things) having had childhood polio. This Arlington cemetery site brings the full story together.

True youthful nightmares may nonetheless count in judicial outlook. Retiring Justice John Paul Stevens -- from an elite Republican family background in the Midwest -- was shaped by repercussions of the Depression on the Chicago hotel business. Jeffrey Rosen interviewed Stevens for a 2007 feature in The New York Times Magazine:

"I had a very happy childhood," Stevens told me with a faraway look in his eyes. But events took a darker turn in 1934, when the Stevens Hotel [world's largest when it opened in 1927, and now the Chicago Hilton] went bankrupt in the Great Depression, and Stevens's father, grandfather and uncle were indicted for diverting money from the Illinois Life Insurance company to make interest payments on bonds for the hotel. Stevens's uncle committed suicide, and his father was convicted in 1934 of embezzling $1.3 million. "A totally unjust conviction, I can assure you," Stevens told me with passion. Indeed, later that same year, the Illinois Supreme Court overturned the conviction. "There is not a scintilla of evidence of any concealment or fraud attempted," the court noted.

I asked Stevens whether seeing his father unjustly convicted influenced his views on the Supreme Court. "I'm sure it did," he replied. "You can't forget about that." Stevens said the experience had taught him a "very important lesson": namely, "that the criminal justice system can misfire sometimes" because "it seriously misfired in that case." As a Supreme Court justice, Stevens seems to have kept this lesson firmly in view. In criminal-justice cases from 1995 to 2001, according to numbers compiled by Christopher E. Smith of the School of Criminal Justice at Michigan State University, of all the justices on the court, Stevens took the most expansive view of individual rights, voting against the government 69.7 percent of the time. (The next most liberal justices were Ginsburg at 60 percent, Souter at 57.6 percent and Breyer at 54.9 percent.)

Stevens's ethical questions about targeted killing inspired his efforts to limit application of the death penalty and are worth remembering. As a Navy cryptographer, Stevens

helped break the code that informed American officials that Adm. Isoroku Yamamoto, the commander of the Japanese Navy and architect of the Pearl Harbor attack, was about to travel to the front. . . . U.S. pilots, on Roosevelt's orders, shot down Yamamoto's plane in April 1943. Stevens told me he was troubled by the fact that Yamamoto, a highly intelligent officer who had lived in the United States and become friends with American officers, was shot down with so little apparent deliberation or humanitarian consideration.

I wonder whether Stevens would have seen his role in this light if he hadn't witnessed his father's case, in the midst of a search for scapegoats in the Depression.