Five Chiefs Read online

  With the possible exception of Earl Warren, he is also the best spokesman for the Court in nonjudicial functions. He handles meetings with foreign dignitaries with grace, good humor, and understanding of our common problems. His appointments of Jim Duff as head of the administrative office of the judicial branch and Jeff Minear as counselor to the chief justice were both superb. Jim was the aide at the Court in the cloaking room when I first started, and Jeff had been an excellent advocate in the solicitor general’s office before the chief persuaded him to come to the Court, where he makes sure that the chief’s administrative responsibilities are competently performed. And John Roberts retained our superbly competent clerk, General Bill Suter, and our excellent marshal, Pam Talkin, who had been selected by his predecessor. In sum, I have nothing but praise for his conduct of the responsibilities for which he receives additional compensation.

  When I arrived at the Court in 1975, the space occupied by active and retired justices had expanded to include the entire perimeter of the first floor. The chief’s chambers had not moved, but instead of five sets of offices on his end of the building, there were only three—the chief’s, Potter Stewart’s, and Thurgood Marshall’s. Each of the three other members of the Court appointed by President Nixon—Harry Blackmun, Lewis Powell, and Bill Rehnquist—had chambers with a glorious view of the Capitol to the west. Justice Douglas, whom I succeeded, wanted to retain his chambers, and retired justice Tom Clark had offices to the east of Bill Rehnquist’s. I moved into the only available vacant space on the first floor—the suite that was traditionally reserved for the retired chief justice. Given that both Stone and Vinson had died in office, I believe that what was probably the most beautiful office in the Court had been vacant for about thirty years. It has the inspiring view of the Capitol but inadequate accommodations for multiple law clerks.

  The office was particularly impressive in 1975 because it contained two magnificent crystal chandeliers. Those chandeliers played a role in what I regard as an unfortunate change in the conference room that occurred during John Roberts’s tenure as chief. A few years ago, Justice O’Connor, Justice Kennedy, and Justice Souter served as a committee supervising much-needed renovations of the Supreme Court Building, including such matters as modernizing its antiquated heating system. As a part of their project they decided to improve the lighting and the appearance of the Court’s conference room by removing the two chandeliers from the retired chief’s chambers, acquiring a third, and hanging all three in the conference room.

  During the summer a year or so before David retired—when the Court was in recess—they made a change in the arrangement of the furniture in the conference room without consulting all of the other justices first. Some might consider the change trivial, but I thought that moving the large oblong table around which the nine justices sit during their conferences could end up having a subtle and unfortunate impact on deliberations. Whereas previously the table had been next to the fireplace at the north end of the room, with the chief sitting at its east end, now the table is aligned on a north–south axis in the center of the room immediately under the new chandelier; the chief sits at the south end of the table, and the senior associate justice sits at the opposite end.

  On more than one occasion I voiced an objection to the change. I think a combination of inertia and gratitude for the countless hours that the three members of the committee had spent, rather than an evaluation of the merits of their decision, led to the consensus accepting the new arrangement.

  What formerly was an empty spacious area in the center of the room is now occupied by the table, the nine justices’ chairs, and, when the conference is in session, their mobile carts containing all the briefs they need to consult during deliberations. I think the elimination of the large open space in the middle of the room will have an adverse impact on activities on both sides and both ends of the table. At almost every conference at least one justice will have his messenger place one or more photographs of the entire Court on a table behind the chief, implicitly asking for everyone to autograph them. There used to be ample room for multiple justices to do so simultaneously while carrying on a conversation. Seriatim signings are now more common.

  When the table was at the north end of the room, the telephone was within arm’s reach of the justice sitting to the left of the senior associate justice. The phone is typically used only for outgoing calls, because incoming messages—or materials requested by a justice—are always preceded by a knock on the door from an attendant outside the conference room. On rare occasions when the phone did ring it was safe to assume that the caller had the wrong number. (Byron White typically answered by picking up the phone and crisply stating: “Joe’s Bar.”) Now the justices must either let the phone ring or get up and cross the room to answer it.

  When the conference recesses for the all-important coffee break, a member of the chief’s staff brings in the beverages and food and places them on a table on the east side of the room, and the standing justices help themselves to tea and coffee and small plates of fruit or baked goods. There used to be ample room for milling about while discussing nonlegal subjects, such as the Redskins’ prospects in the upcoming Sunday game. The congested area between the two tables is now far less accommodating.

  The foregoing attempt to explain my reasons for disapproving of the location of the conference table under the central chandelier has provided me with the same benefit that writing first drafts of opinions occasionally did. I have failed to recognize the significance of a critically important fact: sitting in the middle of the room, I seemed to have more difficulty hearing everything that the chief and Ruth Ginsburg had to say. While I had attributed that difficulty to the decline in my hearing capacity, I am now inclined to believe that the acoustics in the middle of the room may differ from those in the area where the table was formerly located. If that should be the case, I shall expect my good friend Nino Scalia, who now sits at the north end of the table, to join this dissent in due course.

  Chief Justice Roberts’s opinion announcing the judgment of the Court in Baze v. Rees, in 2008, had a critical impact on my views about the constitutionality of capital punishment. To explain why, I must go back a few years.

  In the Furman case in 1972, in a one-paragraph unsigned opinion, the Court held that the imposition and carrying out of the death penalty in a series of cases that had arisen in Texas and Georgia constituted cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. That brief per curiam statement was followed by 231 pages of opinions, one opinion for each of the nine members of the Court. Justices Douglas, Brennan, Stewart, White, and Marshall supported the judgment; Chief Justice Burger and Justices Blackmun, Powell, and Rehnquist dissented. Following that decision, thirty-four state legislatures enacted new death penalty statutes, five of which were challenged during my first term on the Court. The chief justice, Justice White, Justice Blackmun, and Justice Rehnquist voted to uphold the constitutionality of all five, whereas Justices Brennan and Marshall would have invalidated all of them. The joint opinions written by Justice Stewart, Justice Powell, and myself therefore controlled the outcome in all five cases.

  We concluded that the so-called mandatory statutes that required the judge to impose the death penalty for every defendant found guilty of certain offenses were unconstitutional, whereas those that required a separate weighing of aggravating and mitigating factors in each case before the death sentence could be imposed were constitutional. That meant that the Georgia and Florida statutes were valid, and the South Carolina and Louisiana statutes were invalid. The Texas statute presented a closer question, but we ultimately decided that it belonged in the nonmandatory category and upheld its validity.

  While I was deliberating about the cases, my law clerk George Rutherglen, who is now a professor at the University of Virginia Law School, urged me to treat the Texas statute as effectively mandatory because the jury was required to impose the death penalty if it made a particular find
ing about the dangerous character of the defendant. George failed to persuade me at the time, but I have since concluded that he was right and that I should have voted differently in the Texas case. Of course, unless I could have persuaded Lewis and Potter to do so as well, the outcome would not have changed. Nevertheless I regret that vote because experience has shown that the Texas statute has played an important role in authorizing so many death sentences in that state.

  During our deliberations, both Lewis—who had dissented in Furman—and I were influenced by Potter’s opinion in that case. He argued that the death sentences before the Court were “cruel and unusual in the same way that being struck by lightning is cruel and unusual” and that the Constitution could not tolerate the infliction of a sentence of death under legal systems “that permit this unique penalty to be so wantonly and so freakishly imposed.” Our decisions in 1976 were thus based on our understanding that the states had narrowed the category of death-eligible offenses and would enforce procedures that would minimize the risk of error and the risk that the race of the defendant or the race of the victim would play a role in the sentencing decision.

  In a series of cases decided between 1976 and 2008, when Chief Justice Roberts drafted his opinion in the Baze case, the Court (over my dissent) had enlarged the category of death-eligible offenses to include felony murder; authorized jury selection procedures that give prosecutors a better opportunity to impanel conviction-prone juries than in ordinary criminal cases; refused to set aside a Georgia death sentence notwithstanding its assumption that the defendant had established that the race of the victim correlated strongly with decisions whether to impose capital punishment; and overruled decisions—one of which was written by Justice Powell—that prohibited the use of victim impact testimony in capital sentencing proceedings. The net effect of those unfortunate decisions had been to increase the danger that emotion, rather than reason, would have a controlling impact on sentencing decisions in capital cases.

  In those years, the increasing use of life sentences without the possibility of parole had, in my judgment, eliminated the interest in preventing the defendant from committing further crimes and from deterring others from doing so as sufficient justifications for capital sentences. Moreover, the finality of the death penalty always includes the risk that the state may put an innocent person to death.

  Although it is largely forgotten today, concern with execution of innocents led to Michigan’s pathbreaking 1846 decision to abolish capital punishments for all nontreasonous crimes. Shortly before Michigan amended its laws, two innocent men—one in Canada and one in New York—had been executed. Also apparently concerned with the fallibility of capital punishment, Wisconsin and Rhode Island soon followed Michigan’s abolition. Execution of innocents, after all, is intolerable. That concern has not disappeared. In the last four decades, more than one hundred death-row inmates have been exonerated, a number of them on the basis of DNA evidence.

  To the extent that there is any justification for capital punishment today, it is the interest in retribution, making the defendant suffer as his victim had suffered. Retribution—whether based on real or imagined underlying crimes—was no doubt the primary motivation for the gruesome executions conducted by the English monarchs in the sixteenth and seventeenth centuries, for the scourge of lynchings in the South during the nineteenth and early twentieth centuries, and for sentences now being imposed on our most vicious killers. It is that interest that I believe best explains the survival of the death penalty in the United States after its abolition in most civilized countries.

  John Roberts’s opinion in Baze, to my surprise, convinced me that the Court had already rejected the premise that the death penalty serves a meaningful retributive purpose. His review of our earlier cases effectively demonstrated that the Eighth Amendment has been construed to prohibit needless suffering and significant risks of harm to the defendant. As a matter of constitutional law, what was once a gruesome event has been transformed into a procedure comparable to the administration of anesthesia in a hospital operating room. By requiring that an execution be relatively painless, we protect the inmate from enduring any punishment that is comparable to the suffering inflicted on his victim. We have thus undermined the premise on which public approval of the retribution rationale is based.

  Reflection after reading the Roberts opinion led to my decision to concur in his result but also to write separately. Quoting from an earlier opinion by Justice White, I stated that the death penalty represents “the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes.”

  John Roberts has written two opinions answering questions of constitutional law that merit special comment: his opinion for the Court in Snyder v. Phelps, concerning the First Amendment, and his opinion in Graham v. Florida, involving the Eighth Amendment. The centerpiece of the former, a case involving speech intended to inflict emotional distress on the family of a deceased Marine during his funeral, was this oft-quoted statement by Justice Brennan:

  If there is a bedrock principle underlying the First Amendment, it is that government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.

  There is some irony in the chief’s reliance on that statement because four years earlier he had written the Court opinion upholding the discipline of a high school student for displaying a cryptic banner that might reasonably have been construed as promoting the use of illegal drugs.

  Justice Brennan had made the quoted statement in his opinion holding that a Texas statute prohibiting flag burning was unconstitutional. In that case the defendant had taken a flag removed from a public building, doused it with kerosene, and ignited it as part of a public protest against the policies of the Reagan administration. He was not in fact punished for expressing any ideas about those policies; he was punished because he was using a prohibited method of expressing his message.

  Justice Brennan had reasoned that the defendant was expressing his disagreement with not only President Reagan but also the idea that the flag was a symbol that was entitled to respect. But again, it was not the expression of that idea that gave rise to the prohibition; it was the method of expressing the idea that the law prohibited. The law would have allowed the defendant to express his hatred of the flag in many other ways, but it would not have allowed him to shoot or to assault a soldier carrying a flag to express his hatred.

  Reasonable scholars and judges have offered differing views about whether flag burning should be a constitutionally protected method of expression, but I am not persuaded that Justice Brennan’s eloquent statement helped answer the question in either the flag case or the funeral-hate-speech case. Although seven of his colleagues joined Chief Justice Roberts’s opinion that relied on the Brennan proposition, as Justice Alito explained in his dissent, the hate speech during the funeral was not prohibited because society or the jury found the speakers’ ideas disagreeable and offensive. It was prohibited because the jury found that the speakers intended to use their speech to cause severe harm to a grieving family during a funeral.

  Our cases interpreting the First Amendment have recognized a critical difference between harmful speech targeting public figures and similar speech about private individuals. While some defamatory speech about public figures, like the Reverend Jerry Falwell, is protected, similar speech about private individuals is not. The fact that the protection of such speech may shine a spotlight on the speakers does not, as Justice Alito explained, “transform their statements attacking the character of a private figure into statements that made a contribution to debate on matters of public concern.” And though the protest in this case occurred on a public street, Justice Alito elaborated, “there is no reason why a public street in close proximity to the scene of a funeral should be regarded as a free-fire zone in which otherwise actionable verbal attacks are shielded from liability.”

  It is easy to gloss over the dif
ference between prohibitions against the expression of particular ideas—which fall squarely within the First Amendment’s prohibition of rules “abridging the freedom of speech”—and prohibitions of certain methods of expression that allow ample room for using other methods of expressing the same ideas. The difference is much like the difference between speech itself and money that is used to finance speech. Given the fact that most of his colleagues joined the chief in his funeral-speech opinion, perhaps I should give him a passing grade in First Amendment law. But for reasons that it took me ninety pages to explain in my dissent in the Citizens United campaign finance case, his decision to join the majority in that case prevents me from doing so.

  The chief is, however, entitled to a high grade for his separate writing in Graham v. Florida (2010), a case in which Justice Anthony Kennedy’s majority opinion held that imposing a life sentence without the possibility of parole on a juvenile offender for a non-homicide crime violates the Eighth Amendment’s prohibition of cruel and unusual punishment. John Roberts’s separate opinion in Graham is significant because it rejects a narrow interpretation of the Eighth Amendment—and, more important, the kind of reliance on “original intent” as a method of interpreting the Constitution—that Chief Justice Rehnquist and Justice Scalia espoused.