AuthorGreenhouse, Linda

THE MAKING OF A JUSTICE: REFLECTIONS ON MY FIRST 94 YEARS. By John Paul Stevens. New York: Little, Brown and Company. 2019. Pp. ix, 549. $35.


Justice John Paul Stevens was more celebrated in retirement and after his death, on July 16, 2019 at age ninety-nine, than he was during his nearly thirty-five years on the Supreme Court. (1) It's not difficult to understand why. His retirement in 2010 freed him from the constraints inherent in serving on a collegial court. No longer did he have to worry about accommodating colleagues whose "joins" he might need to create or hold a majority--a particular challenge during the final sixteen years of his tenure, when he was the senior associate justice, responsible for assigning the majority opinion in cases in which he and the chief justice diverged and the chief was in dissent. (2)

No longer was the judicial opinion the only form of literature open to him for expressing dismay about the Court's steady shift to the right on issues he cared about. (Although in one late dissenting opinion, in the Seattle and Louisville school case in 2007, (3) he permitted himself an unusually personal expression of "righteous anger" (4) when he wrote: "It is my firm conviction that no Member of the Court that I joined in 1975 would have agreed with today's decision." (5))

At a still-energetic age ninety, the retired justice became a public intellectual. Beginning just months after leaving the Court, he wrote eight articles for the New York Review of Books on such topics as hate speech, the death penalty, and statutory interpretation; (6) the last article, an essay on Judge Jeffrey Sutton's book about state constitutions, appeared in December 2018. (7) In 2019, he published a book review essay in Volume 117 of this law review. (8) In March 2018, weeks after the gunfire murders of seventeen students and staff members at a high school in Parkland, Florida, he wrote a New York Times op-ed calling for repeal of the Second Amendment as "a relic of the 18th century." (9)

He accepted many invitations to give speeches and participate in symposia; in one particularly interesting speech titled Originalism and History, delivered at a Georgia Law Review symposium in 2013, he recounted his experience watching the movie Gone with the Wind shortly after its release in 1939. (10) He used that memory as a frame for dissecting the popular movie's distortions of post-Civil War history and to then make a larger point about the unreliability of history as a tool for constitutional interpretation. Referring with evident disdain to "the so-called Jurisprudence of Original Intent," he said: "My conclusions are twofold: first, history is at best an inexact field of study, particularly when employed by judges. Second, the doctrine of original intent may identify a floor that includes some of a rule's coverage, but it is never a sufficient basis for defining the ceiling." (11)

In retirement, Justice Stevens wrote two books in addition to the one under review. The more recent, Six Amendments: How and Why We Should Change the Constitution, (12) is straightforward in its recommendations for overturning Citizens United, (13) Heller, (14) and the anticommandeering principle of Printz v. United States; (15) abolishing capital punishment and political gerrymandering; and curbing governments' use of the sovereign immunity defense. These had been the subjects of Justice Stevens's most notable dissenting opinions, as well as of his writing and speaking during the years between his retirement and the book's publication.

I focus briefly here on the first of the books, Five Chiefs: A Supreme Court Memoir, (16) published in 2011, barely a year after Justice Stevens's retirement. In both structure and style, this little book (248 pages of text, plus an appendix containing the text of the Constitution) offers a foretaste of the 531-page The Making of a Justice: Reflections on My First 94 Years (17) that the justice published two months before his death. In that way, this first book offers a prelude to the eventual summing up, and it pays to consider the two together. (Although it seems odd to call the death of a ninety-nine-year-old man unexpected, his in fact was; the previous week, he had joined Justices Ginsburg and Sotomayor at a conference in Lisbon during which, Justice Ginsburg said in her eulogy, he was completely engaged, in command of detail, and fully enjoying himself. (18))

The five chiefs of the book's title are the five chief justices the author encountered during his career, beginning with his clerkship for Justice Wiley Rutledge on the Vinson Court during the 1947 Term and concluding with the first five Terms of the Roberts Court. (19) In between, we encounter Chief Justice Warren, before whom the young John Paul Stevens, practicing antitrust law with a Chicago firm, argued his only Supreme Court case; (20) Chief Justice Burger, whose inadequacies as a manager Justice Stevens describes in pointed detail; (21) Chief Justice Rehnquist, with whom he disagreed profoundly on questions of federalism and sovereign immunity; (22) and Chief Justice Roberts, who was a law clerk early in Justice Stevens's tenure and about whom Justice Stevens writes with admiration for his personal qualities if not for his jurisprudence. (23)

Five Chiefs was received with more indulgence than enthusiasm. Garrett Epps, writing in the Atlantic, called it a "reticent finger exercise." (24) Yet there is a good deal more substance in the book than appears on the surface; clues to how the author has processed his long experience at the apex of the legal world are hiding in plain sight for readers with open eyes. One example is his comment on Harmelin v. Michigan, (25) an Eighth Amendment case in which the 5-4 majority rejected a proportionality challenge to a mandatory life sentence imposed on a man convicted of possessing less than a pound and a half of cocaine. Of the five members of the majority, three were "relatively new occupants of the seats formerly occupied by Justices Stewart, Powell, and Brennan," Justice Stevens writes, referring to Justices O'Connor, Kennedy, and Souter. (26)

I am persuaded that all three of those then recently retired justices would have shared Justice White's [dissenting] views in Harmelin. Moreover, just as the meaning of the Eighth Amendment itself...

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