Tony Mauro at the National Law Journal has another piece up from his digging through the Potter Stewart papers, this time on the Justice’s friendships with President George H.W. Bush and Professor Larry Tribe, and their thoughts about what could have been.
Stewart died in 1986, so he never saw his friend George make it to the White House in 1989 – but Mauro finds that he did follow his friend’s 1980 Presidential run and VP nomination quite closely:
Stewart clearly had a keen interest in Bush’s electoral fortunes, collecting news clippings about Bush testing the waters for a 1980 run for the presidency, which turned into a campaign for vice president with Ronald Reagan at the top of the ticket. Stewart corresponded with Christopher Phillips, apparently a strategist who was urging Bush to stress his moderate views and not give in to pressure from the right that was fueling Reagan’s success. “My great fear is that even if the views stated in your memorandum are fully understood and completely accepted, the house may be irreparably late,” Stewart wrote. Stewart even shared his views with Powell, who wrote Stewart, “These are views you and I have shared. It may indeed be too late now.”
Indeed, for the Court, it was too late. Under Reagan, Stewart and Powell’s moderate conservatism–political and jurisprudential–began its decline towards today’s near-extinction.
And from Stewart’s “Tribe” file:
In May 1969, after Nixon appointed Warren Burger as chief justice, Tribe wrote a letter to Stewart mourning the demise of a shared hope: that Stewart would be elevated to the position instead. “I had so hoped things would turn out differently,” Tribe wrote. “For you — and for the country — I am sorry.” Stewart’s reply note did not deny the ambition.
This note from Tribe seems at odds with The Brethren‘s prologue (see pp. 10-13), in which Woodward and Armstrong write that Stewart declined President Nixon’s overtures to elevate Stewart to Chief Justice. Perhaps Stewart, now known as a significant source for The Brethren, fed Woodward and Armstrong this story for pride’s sake. Perhaps Tribe did not know about this meeting. Or perhaps Tribe was lamenting the underlying reasons why Stewart felt compelled to decline the President’s offer – “why”s that may have been lost forever in the fires Tribe told me about at the Kagan hearings and reiterated to Mauro:
Laurence Tribe remembers watching Potter Stewart, the U.S. Supreme Court justice for whom he clerked in 1967, feed his office fireplace around Christmas time.
Stewart was burning some of his Court papers, recalls Tribe, the Harvard law professor and now senior counselor at the Justice Department. “He told me that it was an annual affair.”
What papers did Stewart destroy that year? “I promised him I’d remain forever silent, and it’s a promise I feel bound to keep,” Tribe said.
Read the whole piece over at Law.com.
Tony Mauro of the National Law Journal is reporting on the opening of Potter Stewart’s papers at Yale:
Stewart died in 1985 at age 70, but he stipulated that his papers would not be made public until the retirement of all justices with whom he served. Justice John Paul Stevens was the last justice in that category, so his departure was the trigger for the release of Stewart’s papers, at long last.
[...] From an initial scan of his case and correspondence files, it does not appear, however, that scholars will learn much about how his brethren won over his vote. The case files generally contain just successive drafts of opinions, with little else.
Mauro’s initial impression of a lack of juicy behind-the-scenes details is corroborated by what I learned in a brief exchange with Professor Larry Tribe at the Kagan hearings. Tribe was a Stewart clerk in the 1967-68 term and told me that Stewart burned much of his more sensitive papers. Learning this dampened my enthusiasm to make a trip to New Haven to go digging through Stewart’s records, but perhaps I may still head up there at the end of the summer.
Readers of F1@1F may know that I’m a big fan of Stewart’s “scrupulously non-ideological” jurisprudence, as Mauro describes it. Indeed, if I were ever to write a biography of a Supreme Court justice during his tenure on the bench, I would look to Stewart. He is of a dead breed of judicial conservatism that will be due for a resurrection in the next decade or two.
As the public begins to recognize that originalism is not at all a safeguard against–but rather a thin veil masking–results-oriented, unprincipled judging, we will see a return of confidence in judges who need no theory of everything to be good, careful, honest judges. At least so I hope. Today’s liberal bloc is often derided for being too pragmatic and moderate, that the left needs ideological liberals in the molds of Douglas, Black, Warren, Brennan, and Marshall. But I think the answer is in more Stewarts, Harlans, Whites, and O’Connors on the right. A perfect court, in my mind, would have its Brennan/Marshall’s and Scalia/Thomas’s on the wings, with a broad and heterodox middle taking each case as it came. That would be a diverse bench. The question remains, however, whether in the age of movement conservatism there remain any pragmatic right-leaning judges or lawyers for future Republican presidents to appoint.
Perhaps some of Stewart’s papers that survived the fireplace may hold a blueprint for a resurgent pragmatic conservatism on the Court.
One of the most gratifying parts of this project has been meeting all sorts of people in the early morning line. And as it turns out, I’m not the only person who goes home and writes about the experience.
I offer anyone who has stood in line with me–or in line without me–who has written about his or her experience at the Court to send me a link, and I will post it here.
The first blogger in my Friends of F1@1F feature is Brandon Forbes. Forbes was twenty-sixth in line for Tuesday morning’s arguments and blogs at Good Gov, Y’all. He recapped his experience outside and inside the Court with an entry titled, “Sitting Courtside, Breyer & Scalia Give Me Hi-Fives,” in which, among other things, he posited his own thoughts on a conversation we had while shivering on First Street:
In our pre-dawn discussion, Mike voiced his love of The Brethren, an Armstrong and Woodward SCOTUS tell-all that caused much controversy when it was published in the ‘late 70s with its inside look at the Burger Court and which I tried to read in high school and now need to re-read. Anyway, he made an interesting case for Potter Stewart as being the last “pure judge” on the Court, meaning, I think, that he was appointed outside of the ideological box that has been present in judicial discourse since the late ’70s. One could make the case that Stevens also fits this bill, at least at his appointment, though he has drifted further and further to the left in reaction to the Rehnquist/Scalia conservatism that emerged in the late ’80s, a conservatism which now generally wins if the current Court splits 5-4 (see Citizens United). I’d like to look into this more, but my initial thought is that Roe might be responsible for this divide, much in the same way as West Coast Hotel v. Parrish could be seen as the dividing line for the modern interpretation of the Commerce Clause. In other words, judges appointed after Roe have the ideological boxes of the culture wars to deal with before they get on the Court just as judges after West Coast Hotel had the necessity of having a robust interpretation of the Commerce Clause as requisite for getting on the Court. But maybe that’s a bit of a convoluted analogy. A way to say it simpler might be: Roe v. Wade has been the benchmark case since 1973 for determining who gets on the Supreme Court (either supportive or against), and Stewart didn’t have to deal with that hanging over his confirmation. Interesting discussion, anyway.
I do, in fact, believe that Justice Stevens does fit the Stewart mold, but Brandon makes a good point that this has been obscured by the Court’s post-Roe politicization, in which the Court, as Jeffrey Toobin recently noted, “has become a partisan battlefield.”
Indeed, Stevens has consciously strived for the survival of Stewart’s legacy despite the rise of rigid ideology on the Court. As Jeffrey Rosen wrote in 2007,
Stevens, however, is an improbable liberal icon. “I don’t think of myself as a liberal at all,” he told me during a recent interview in his chambers, laughing and shaking his head. “I think as part of my general politics, I’m pretty darn conservative.” Stevens said that his views haven’t changed since 1975, when as a moderate Republican he was appointed by President Gerald Ford to the Supreme Court. Stevens’s judicial hero is Potter Stewart, the Republican centrist, whom Stevens has said he admires more than all of the other justices with whom he has served. He considers himself a “judicial conservative,” he said, and only appears liberal today because he has been surrounded by increasingly conservative colleagues. “Including myself,” he said, “every judge who’s been appointed to the court since Lewis Powell” — nominated by Richard Nixon in 1971 — “has been more conservative than his or her predecessor. Except maybe Justice Ginsburg. That’s bound to have an effect on the court.”
In his one of his final written opinions, Justice Souter, another judge in the Stewart–if not Harlan II–mold of judicial conservatism, planted a seed of wisdom for future justices who follow in his and Stevens’s footsteps once today’s age of politically-aligned ideology subsides:
Changes in societal understanding of the fundamental reasonableness of government actions work out in much the same way that individuals reconsider issues of fundamental belief. We can change our own inherited views just so fast, and a person is not labeled a stick-in-the-mud for refusing to endorse a new moral claim without having some time to work through it intellectually and emotionally. Just as attachment to the familiar and the limits of experience affect the capacity of an individual to see the potential legitimacy of a moral position, the broader society needs the chance to take part in the dialectic of public and political back and forth about a new liberty claim before it makes sense to declare unsympathetic state or national laws arbitrary to the point of being unconstitutional. The time required is a matter for judgment depending on the issue involved, but the need for some time to pass before a court entertains a substantive due process claim on the subject is not merely the requirement of judicial restraint as a general approach, but a doctrinal demand to be satisfied before an allegedly lagging legal regime can be held to lie beyond the discretion of reasonable political judgment.
The whole dissent is worth reading. I am convinced that a generation from now, Souter’s parting words will steer a Court that reflects a society confident enough to allow a judge to judge, rather than force a justice to fit facts into predetermined ideological frameworks. Just as Harlan and Stewart, both Eisenhower nominees, entered the Warren Court comparatively conservative to their stridently liberal brethren but now appear to be sober moderates, so too will Stevens and Souter be remembered as moderate despite their reputation as liberals from serving in a politically distorted age on the Court.
In other words, the principled judging qua judging of Harlan, Stewart, Stevens, and Souter has been an enduring casualty of the Warren and early Burger Courts’ politically liberal overreach and the subsequent politically conservative overcorrection of the Rehnquist and early Roberts Courts.
But I don’t think it is too offensive for this Jew to say on this Easter day that the moderates’ jurisprudence will be resurrected by a confident public that trusts judges’ judgment and votes for Presidents and Senators that reflect America’s transcending the current culture wars.
If this vision of the late Roberts Court looks more like the apocalypse scenes in the Book of Revelations than the Gospel, then you should check out Josh Blackman’s blog. Blackman and I got to know each other as we liveblogged the McDonald line. In addition to his libertarian-originalist blogging and his FantasySCOTUS league, Blackman has beatified, through non-profit incorporation, the first Justice Harlan as the Court’s proto-originalist. Through his Harlan Institute, Blackman seeks to deepen schoolchildrens’ understanding of the Constitution–an honorable goal, even if in pursuing it, he hopes to perpetuate a particular ideology into the next generation that gets in the way of my own vision for how we view the Court and politics.
But I come not to quibble the future with Josh, but rather to praise his prankster skills. Yesterday, he posted a story titled, “FantasySCOTUS.net to receive 30 min advance notice before opinions issued to curb cheating“:
When I mentioned this unfortunate fact [of FantasySCOTUS cheating] to friends at the Supreme Court, they clued me into a little known SCOTUS secret. Certain reporters, news agencies, and blogs, receive 30 minute advance notice before opinions are issued. While the Court does not release the holding of the opinion, the Clerk of the Court sends a brief e-mail, listing the opinions that will be issued.
At first I was incredulous, and didn’t believe this was possible. But at some point during the Rehnquist Court, Nina Totenberg, the doyenne of One First Street, used her enormous clout to push for this privilege. She was tired of hiking to the Court on days when lousy opinions were issued. Once she asked for it, the Court could not say no. Apparently, Lyle Denniston at SCOTUSBlog has been receiving these tips for years. No wonder he is always able to get post such thorough summaries so quickly.
Like any cert grant, in order to qualify for this special privilege, the Rule of 4 applies. Justice Sotomayor came through, and joined the Chief Justice, Justice Alito, and Justice Thomas. Apparently the Junior Justice is a serious Fantasy Sports fan, and fell in love with the league, and was appalled that people would cheat. Sadly, Justice Scalia decided to recuse, due to some of my recent publications criticizing his views in McDonald.
Justice Breyer, joined by Justice Stevens and Justice Ginsburg, dissented from the issuance of our petition. He does not seem to be a fan of FantasySCOTUS.net. In a verbose opinion, he wrote that while liberty must be active, fantasy court leagues must be passive, and we were not worthy of this privilege. Paraphrasing Chief Justice Roberts famous admonition from Parents Involved, Justice Breyer wrote “the way to end lame fantasy sports leagues is to end lame fantasy sports leagues.”
That’s a hell of a clever April Fools’ joke. Seems credible at first, but steadily slides into farce and, ultimately, self-deprecation. Very good stuff.
If you have written about your SCOTUS experience, please do send me the link. If I get a few more stories, I will also add an F1@1F Friends link to my blogroll.
UPDATE: Josh Blackman writes in,
“Nice dig at Harlan [Institute] ;). It really isn’t ideological. [Harlan Institute's] not about institutionalizing originalism. Its about teaching about the history of the constitution to influence decisionmaking. There is a difference. If I do my job right w harlan, kids will learn enough about history to make themselves informed and need not reach the results I wish.”
I quibble no longer: that’s an absolutely honorable goal.
Easter is actually on Sunday. Jesus is still technically “dead” right now. The Christians will be unhappy if you resurrect him too soon.
Point taken. I’ll be sticking to my matzoh from now on. At least Brandon and I will be on the same page for who to root for in the Final Four tomorrow.
UPDATE III: One day after this post, the NYT has published an interview with Justice Stevens by Adam Liptak. Along with getting even closer to Justice Stevens’s internal deliberations upon his perhaps-imminent retirement, the interview also gets to Justice Stevens’s self-conception as a judicial conservative by touching upon his majority opinion in Kelo and the final paragraph of his Baze v. Rees concurrence:
His views have generally remained stable, he said, while the court has drifted to the right over time. “To the extent I look back at earlier situations,” he said, “I really don’t think I’ve changed all that much.”
Often, he added, the law requires a certain result, as in the court’s 2005 decision in Kelo v. City of New London, which allowed local governments to use the power of eminent domain to take private property for business development.
“The Kelo case was one of my most unpopular opinions, and that was one where I thought the law really was pretty well settled on the particular point,” he said.
Asked if he would have answered the question presented in the case differently had he instead been a legislator, Justice Stevens said probably yes.
In the area of capital punishment, though, he said his views had shifted.
“I certainly would not have expected during my first years on the court to have written an opinion like I did in Baze,” he said, referring to Baze v. Rees, the 2008 decision that rejected a challenge to lethal injections. Though Justice Stevens voted with the majority, he wrote that he had come to the conclusion that the death penalty violates the Eighth Amendment. He went on to say that his conclusion did not justify “a refusal to respect precedents that remain a part of our law.”
“I’m still a member of the court, and I still have to work,” Justice Stevens said. “I never really agreed with Justice Brennan and Justice Marshall that your own personal view on the issue should prevent you from participating. You’re still a member of the team, and the team has to confront the problem.”
But that did not mean Justice Stevens, who in 1976 voted to reinstate the death penalty, was satisfied with the court’s capital jurisprudence.
“There are a number of death cases that troubled me,” he said. The Baze opinion, he added, “was really my reaction to the developing jurisprudence, which I think moved in a direction that I didn’t expect and is not correct.”