Justice John Paul Stevens is retired but still writing opinions
Justice John Paul Stevens spent 35 years on the Supreme Court writing legal opinions. So it’s not surprising his first book, “Five Chiefs,” is chock-full of opinions — about where his fellow justices went wrong.
For example, Stevens, 91 and retired, describes Bush vs. Gore — the decision that resolved the contentious 2000 presidential election — as the result of a “frivolous” appeal that shouldn’t have been granted.
That was a “low point” in his tenure on the court, he said in a recent interview.
He writes about bumping into fellow Justice Stephen G. Breyer in December 2000 at a Christmas party for their grandchildren. At the time, lawyers for then-Gov. George W. Bush of Texas were pressing the court to stop the hand recount of disputed ballots in Florida. The two justices agreed there were no legal grounds to grant the request.
But to Stevens’ surprise, five justices went along with the Bush request and agreed to rule in the case. “What I still regard as a frivolous stay application kept the court busy for four days,” he writes in his book.
“To the best of my knowledge no justice has ever cited” the court’s opinion in Bush vs. Gore since then, he says in the book.
Stevens also remains highly critical of the 5-4 decision in last year’s Citizens United case, which struck down laws banning corporate and union expenditures on election campaigns. The court majority said the spending was, in fact, speech and thus entitled to the full protection of the 1st Amendment.
“Campaign expenditures pay for all kinds of things that are not speech, like polls and travel,” Stevens said in the interview. “By that theory, the Watergate burglary was a campaign expenditure and therefore was speech. That example exposes how the argument is flawed.”
Stevens’ book tells of his arrival at the court as a law clerk in 1947, when the little-remembered Fred M. Vinson, a poker-playing pal of President Truman, was the chief justice. Vinson’s sudden death from a heart attack in 1953 cleared the way for President Eisenhower to make California Gov. Earl Warren the chief justice. A year later, Warren led a unanimous court to outlaw racial segregation in Brown vs. Board of Education.
On a personal level, Stevens has kind words for his colleagues. He singles out for special praise two middle-of-the-road justices, Potter Stewart and Byron R. White, and the liberal Justice Thurgood Marshall, a legendary civil rights lawyer.
Stevens writes that Marshall’s retirement in 1991 was “the most significant judicial event” of William H. Rehnquist’s tenure as chief justice because he was replaced by conservative Justice Clarence Thomas.
He also says he remains troubled by opinions by Rehnquist, beginning in 1996, that say states have “sovereign immunity” shielding them from lawsuits by employees or professors at public colleges, even when their rights under federal law have been violated. In a later opinion, Justice Anthony M. Kennedy wrote that the “dignity” of the state must be protected.
“The text of the Constitution does not mention the word ‘dignity’ or the word ‘sovereignty,’ ” Stevens writes. “It does, however, state in its preamble that one of its purposes was to ‘establish justice.’ ” And it says federal law “shall be the supreme law of the land,” he adds.
“Like the gold stripes on his robes, Chief Justice Rehnquist’s writing about sovereignty was ostentatious and more reflective of the ancient British monarchy than our modern republic. I am hopeful that his writings in this area will not be long remembered,” Stevens writes.
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