Five Chiefs Read online

  In my initial conversation with John Hastings, he made a comment about the Groppi case. I think Groppi may have already filed a petition for an en banc rehearing—a request that the case be reargued in a hearing before all eight of the active judges on the court—before our conversation took place. John did not discuss the merits of the case, but I vividly remember one remark that he made. He said that he had asked Wilbur Pell, who had recently been appointed to the Court by President Nixon, to write the opinion because it was the kind of case that might be noticed in Washington. One of the themes of Nixon’s presidential campaign had been a promise to appoint “law and order” judges who would follow the law rather than engage in the kind of “activism” that he ascribed to Earl Warren.

  Of the seven voting judges, a majority of four—Luther Swygert, Roger Kiley, Otto Kerner, and I—voted to rehear the case en banc. Judge Hastings had been ineligible to vote to rehear the case en banc because he was a senior judge, but as a member of the original three-judge panel, he was allowed to vote on the merits once it was taken en banc. After the reargument, Judge Kerner joined Judge Hastings in the majority to vote to uphold the contempt conviction. I wrote a dissent that Judges Swygert and Kiley joined. That dissent may well have been my most significant court of appeals opinion because I thought that it put an end to any possibility that I might be considered for appointment to the Supreme Court.

  I really do not believe that the remote chance of my being appointed to a higher court would actually have affected any of the decisions that I thereafter made. But just as the quality of the work of all federal judges is enhanced by the guarantee of life tenure that enables them to put an interest in popularity to one side when they are seeking the answers to difficult questions of law, what I assumed to be a complete removal of any possibility of advancement insulated my further work on the court of appeals from any such distracting influence.

  When I met Chief Justice Burger after he had announced the opinion upholding my dissenting views, I was looking forward to his comments on the case. His opinion for a unanimous Court, after all, had not only reversed an en banc decision of our court of appeals but also rejected the reasoning in a unanimous opinion of the Wisconsin Supreme Court. In my view, the difference between the federal and state courts’ appraisals of this highly visible case may well have been affected by the fact that the Wisconsin judges were elected by the voters whereas Chief Justice Burger and his colleagues enjoyed life tenure.

  In my conversation with the chief, I did not learn whether he shared that view. He was most gracious during our brief meeting—as he was with all the other new judges at the conference—but he was obviously unaware of my dissent. He seemed not even to realize that the case had arisen in the Seventh Circuit.

  While Burger may not have given any special thought to whether conscious or subconscious concerns about possible public reaction to a high-visibility case might affect the quality of a judge’s work, for me the Groppi case has been an ever-present reminder of the critical difference between the work of a judge and the work of other public officials. In our democracy, issues of policy are determined by majority vote; it is the business of legislators and executives to be popular. But in litigation, judges have an overriding duty to be impartial and to be indifferent to popularity. Sir Matthew Hale, a respected English judge, described an essential attribute of judicial office in words that have retained their integrity for centuries:

  11. That popular or court applause, or distaste, have no influence upon any thing that I do in point of distribution of justice.

  12. That I not be solicitous of what men will say or think, so long as I keep myself exactly according to the rules of justice.

  Thinking about Groppi, I quoted those words in a speech to the Chicago Bar Association in 1974 in which I opposed both the popular election of judges and making a judge’s continued tenure depend on the outcome of a periodic retention ballot. While I have always considered financing a campaign and soliciting votes unseemly for judicial candidates, I am even more troubled by the potential impact on the work of the judge of allowing popularity to be treated as an appropriate criterion for determining his or her fitness for office. An important reason for respecting the quality of the work that federal judges perform day in and day out is our confidence in their independence.

  My real relationship with Chief Justice Warren Burger began in 1975 in the period after President Ford nominated me to fill the vacancy caused by Justice Douglas’s resignation and before I was confirmed by the Senate some nineteen days later. While neither the White House nor the Department of Justice did anything to prepare me for the Senate hearings, they did arrange a series of meetings with individual senators.

  I enjoyed those meetings immensely, learning what should have been perfectly obvious, that men (and they were all men) who are popular enough to win statewide elections are generally very good company. I particularly enjoyed my conversation with Senator Barry Goldwater, not just because he had been a candidate for the presidency in 1964 but also, and more important, because he was a pilot who enjoyed talking about the various military aircraft that he had flown. I received the impression that he decided to vote for me when he learned that I had my own plane.

  The purpose of my meetings with individual senators was to avoid a repetition of the unfortunate failure to confirm the nomination of Judge Clement Haynsworth, a fine judge who was well qualified for service on the Supreme Court. Questions had been raised about Haynsworth’s failure to disqualify himself in one or two cases in which he had participated as an appellate judge. Some of the senators whom I met in 1975 told me that they had voted against him because they thought his answers to questions posed at his hearings had been evasive but had later learned that he had a speech defect that often gave listeners an incorrect impression about his candor. To avoid mistakes of that nature, the senators had decided to arrange informal meetings with nominees. In my case, those meetings were primarily social occasions devoid of discussion about substantive legal issues.

  My meeting with Senator Strom Thurmond of South Carolina was an exception. After he introduced me to his entire staff, he asked me to come into his office for a private discussion. He began by stating: “Judge Stevens, I want to talk to you about the death penalty.” I was prepared to tell him about an important opinion that I had written as a circuit judge to explain why I thought I should not discuss my views on that issue, but it was unnecessary for me to do so because he immediately continued: “I am not going to ask you for your opinion—for that would be improper—but I want to tell you how I feel about it.” He then made a perfectly reasonable explanation of why he thought the death penalty played an important role in effective law enforcement. He said nothing that he would not have said in a public setting. A similar scenario occurred during my later meeting with Senator McClellan of Arkansas. After I met with Senator Edward Kennedy of Massachusetts, a member of his staff presented me with a copy of a book that E. Barrett Prettyman Jr. had written arguing that capital cases have an adverse impact on the orderly development of the law.

  I think that it was during my visit to Washington to meet senators that Warren Burger invited me to have lunch with him in his chambers. I had never been in the chief’s chambers when I served as a law clerk. They include three of the five rooms in the area immediately behind—though across the hall from—the courtroom. His principal office is behind the reception area where his secretaries work and is also adjacent to the large room (the conference room) where the justices conduct their discussions about Court business and assemble before going on the bench. On the opposite side of the conference room, the chief has a second office where he may work in private. The fifth room in the area (the robing room) contains the lockers where the justices’ robes are stored and donned and doffed. It was in the chief’s principal office that his messenger served us our lunch.

  Although I had been told that he had urged the president to nominate Clifford Wallace, an excellent judge on the
Ninth Circuit, to fill the vacancy, he could not have extended a more friendly welcome to me than he did. My principal memory of that luncheon is my feeling of awe and disbelief in finding myself back in the building where I had had such a wonderful job as a law clerk. While I later learned that the shape of the bench had been changed and that the justices’ chambers—which had all been located in the eastern half of the ground floor when I was a clerk—had been enlarged to include more space on the first floor as well as significant space on the second floor, in my perception, the building was exactly the same as I remembered. I do not recall receiving any advice from the chief about how to prepare for the hearings other than his observation that the Court would benefit from prompt action by the Senate because a vacancy impaired the ability of the Court to handle its workload efficiently. Harry Blackmun did, however, provide me with a copy of the hearings conducted by the Judiciary Committee before he was confirmed, so I had fair notice of what to expect. My principal adviser was Ed Rothschild, my former partner. He came to Washington with me and helped me respond to the burdensome requests for information about our practice, about possible conflicts of interest in cases that I had heard as a circuit judge, and other inquiries about my health and financial resources.

  The senators were particularly concerned about the state of my health as a fifty-five-year-old nominee because I had recently had heart surgery performed by Dr. Norman Shumway at Stanford University Hospital. Ed and I provided them with all the available details about my physical condition, but we were more concerned about potential questioning about the death penalty and the opposition to my nomination by the National Organization for Women (NOW). With regard to the former, we agreed that it would be appropriate to decline to answer such questions; I had not sat on a capital case, so any views I might have expressed would have necessarily been tentative and potentially misleading because competent counsel might raise arguments that I had not considered. Moreover, my comments might have been misconstrued as commitments, which I, of course, could not properly make. We decided that I should explain my refusal by referring to a novel case in which I had participated in 1972.

  As it turned out, I did not have to discuss the case, but since it sheds some light on Warren Burger’s evolving jurisprudence, I shall describe it. A new Republican secretary of state of Illinois had discharged many non–civil service employees hired by his Democratic predecessor. The plaintiffs—who had held jobs as janitors, clerical workers, license examiners, and the like—alleged that they had been discharged because they refused to become Republicans and to support the Republican Party. Because the case was dismissed in advance of trial on the grounds that the employees had not alleged a violation of any federal right, the appeal presented the legal question whether such non-policy-making employees could be discharged for refusing to transfer their allegiance from one political party to another.

  When I first looked at the papers, I was happy to have such an easy case to decide. Like my colleagues on the panel, I thought it obvious that patronage practices that enabled newly elected officials to reward their supporters by providing them with public jobs had long been entrenched in American history and must be constitutional. But after argument and further study, I came to the conclusion that even though “the patronage system is defended in the name of democratic tradition, its paternalistic impact on the political process is actually at war with the deeper traditions of democracy embodied in the First Amendment.” In 1976, the Supreme Court, over a dissent by Justice Powell, which the chief joined, endorsed that conclusion. In 1980 the chief joined my opinion for the Court in Branti v. Finkel, a case holding that two assistant public defenders were protected from discharge based on their political beliefs.

  While Ed and I were less concerned about the opposition by NOW than about potential questioning seeking my views about the death penalty, we did correctly anticipate some questioning about gender-based discrimination. I had written an opinion for a three-judge district court holding that a majority vote in the Illinois House of Representatives did not qualify as a vote to ratify the Equal Rights Amendment because state law required a three-fifths majority vote; I had also written an opinion arguing that an airline’s policy of hiring only unmarried flight attendants did not unlawfully discriminate against women because the airline had another rule making men ineligible for the position. Since a person of the opposite sex would have been treated less favorably, it did not seem to me that the challenged rule discriminated against females. The test that I applied in that case, and in later cases after I joined the Court, was whether a plaintiff claiming unlawful class-based discrimination would have been better off if he or she had been a member of the favored class.

  As it turned out, the senators did not ask me about either of those cases, but they did ask me whether I favored the adoption of the Equal Rights Amendment. While I knew that my answer would not be helpful to my cause, I explained that I thought the proposed amendment should not be adopted because the equal protection clause of the Fourteenth Amendment, as construed by Warren Burger’s opinion in the Reed case, already provided women with adequate constitutional protection against gender-based discrimination.

  Formal group photograph of the 1975 Burger Court.

  Seated from left: Justices Byron R. White and William J. Brennan Jr., Chief Justice Warren E. Burger, and Justices Potter Stewart and Thurgood Marshall. Standing from left: Justices William H. Rehnquist, Harry A. Blackmun, Lewis F. Powell Jr., and John Paul Stevens. January 1976. Photograph by Robert Oakes, National Geographic, Courtesy of the Supreme Court of the United States.

  In his questions and comments, Senator Edward Kennedy seemed more concerned about my qualifications than any of his colleagues were. He wondered whether there was anything in my record to indicate that I would be fair to claims asserted on behalf of underprivileged citizens. It was another Warren Burger opinion that enabled me to respond effectively to that line of questioning. Burger’s opinion requiring a hearing before a prisoner’s parole could be revoked provided the centerpiece for one of the most important opinions that I had written as a circuit judge—United States ex rel. Miller v. Twomey (1973)—a case arising out of prison disciplinary proceedings. So when Senator Kennedy asked me for evidence that members of what he described as those with “submerged aspirations” would benefit from my confirmation, I was able to produce two letters from inmates in the Illinois state prison that expressed their support for me.

  On the third day of the hearings, Senator James Eastland of Mississippi, the chairman of the Senate Judiciary Committee, took action that convinced me that he would vote for me. A hostile witness—who was claiming that I acted dishonorably in 1967 as counsel to a commission investigating the integrity of an Illinois Supreme Court decision—was reading a long prepared statement when the senator quietly asked me if I wanted to listen or reply to his testimony. When I said no, he told the court reporter to make a full record of the witness’s statement, and, while the witness’s diatribe continued, we left the hearing to share a little bourbon in his office. The statement of the witness is quoted in full in the transcript of the hearings; what Senator Eastland and I had to say in his office was—and shall remain—off the record.

  While members of the executive branch did not help Ed and me prepare for the Senate confirmation hearings, they did provide us with a car and a driver who picked us up at our hotel and took us to the Capitol in the morning and then back to our hotel at the end of the day—with one exception: when the hearings ended, we were on our own and had to hail a cab.

  The majestic courtroom in which the Court hears oral arguments and the justices announce their opinions is located on what is considered the first floor of the building. The clerk’s office, a cafeteria, a motion picture theater, the statue of John Marshall, portraits of former justices, and a kiosk where souvenirs and books are sold are located on the ground floor. On an even lower level there is a large garage, the police headquarters, and other offices. Occupants of the sec
ond floor today include Justice Sonia Sotomayor and her four clerks; about half of the law clerks who are appointed by and work for other justices; the official reporter of decisions, who oversees the final editing and printing of all opinions; and the computer experts who play a vital role in maintaining the efficiency of the writing and communications facilities available to everyone else. The library is on the third floor, the gym on the fourth, and there is storage space on those floors as well. Except for Sonia and David Souter—who no longer keeps an office at the Court—all of the active justices, as well as the retired justices, now have their main chambers on the first floor.

  When I was one of a total of fifteen law clerks in 1947, the chambers of all nine justices, including space for clerks, secretaries, and messengers, were located on the first floor in the east half of the building. The chambers were adjacent to one another, forming a large U surrounding the courtroom. The main entrance to the Court is on the west side of the building. To pass from there to the courtroom and on to the chambers to the south, east, and north involves traversing the extremely spacious great hall, the sides of which are lined by busts of former chief justices. In 1947 Justices Jackson and Burton had a view of the lawn to the north; Justice Black had the northeast corner office; Justice Frankfurter, Chief Justice Vinson, and my boss, Justice Rutledge, looked out on the buildings across Second Street to the east; Justice Reed had the southeast corner office; and Justices Murphy and Douglas had a view of the Library of Congress to the south. None of them could look out the window and see either the Capitol, which is directly across the street to the west of the Court, or the flight of marble steps that ascends from the plaza outside the Court two stories up to the main entrance. The conference room, where the justices meet to make their decisions, was then, as now, in the center of the back (east) side of the building, adjacent to the chief’s office.