Five Chiefs Read online

  A fundamental debate about the meaning of the Eighth Amendment is whether it prohibits merely certain methods of punishment, such as disembowelment, or also contains a proportionality requirement that prohibits punishments that are grossly disproportionate to the crime. Because no one questions the fact that a sentence of life without parole is appropriate in some cases, Graham, by barring it for some juvenile offenders, reaffirmed that the Eighth Amendment does require that sentences be proportionate.

  In his separate opinion, Chief Justice Roberts stated that while he agreed with the result in that case—and thus concurred in the Court’s judgment—he disagreed with its decision to announce a categorical rule applicable to all juvenile non-homicide offenses. Instead, he proposed that courts weigh offenders’ ages and criminal conduct on a case-by-case basis when determining if sentences violated the Eighth Amendment. In the case at hand, he concluded, the sentence did violate the Eighth Amendment because it contravened the narrow proportionality requirement established in the Court’s earlier cases. That position put Roberts directly at odds with his immediate predecessor, Chief Justice Rehnquist, and with Justice Scalia.

  In Harmelin v. Michigan, in 1991, those two justices had been alone in contending that the Eighth Amendment prohibits certain specific kinds of cruel punishments but does not require that the punishment fit the crime. In their view, a life sentence in prison for overtime parking would be constitutional. Justice Scalia recognized that the Court had applied proportionality review only a few years earlier in Solem v. Helm (1983) (which had overturned as constitutionally disproportionate a repeat offender’s sentence to life imprisonment without parole for passing a bad check), but, relying primarily on historical analysis, he announced that “Solem was simply wrong.” In his view, Justice Powell’s opinion for the Court in Solem contained two critical flaws: it included only two pages of discussion of the background of the Eighth Amendment, and it had no discussion at all of the understanding of the amendment before the end of the nineteenth century.

  Justice Scalia’s extensive and interesting discussion of history was based on his own research, rather than the argument advanced by the state, and obviously played a major role in motivating his endorsement of a categorical rule that would prevent judges from considering proportionality when deciding whether a punishment was cruel and unusual. His opinion, however, identifies another factor unrelated to history that was also important to him—the absence of adequate standards for determining when a judge should conclude that a particular sentence is so severe that it violates the Constitution. In his view, the standards discussed by Justice Powell “seem so inadequate that the proportionality principle becomes an invitation to imposition of subjective values.”

  Justice White disagreed, finding that the text, structure, and purpose of the amendment outweighed Scalia’s historical forays. His dissent essentially assumed that Justice Scalia had correctly concluded that the principal reason why the English Declaration of Rights in 1689 and the Eighth Amendment in our Bill of Rights included a prohibition against cruel and unusual punishments was an opposition to particular modes of punishment. But, quoting from an 1832 treatise, White pointed out that the amendment also prohibits “excessive” bail and “excessive” fines, both of which obviously require a determination of proportionality. The treatise noted that in cases in which the judge had discretion both to fine and to imprison a defendant, it would “surely be absurd” to assume his discretion was limited with respect to the amount of the fine but unlimited with respect to the term of imprisonment. I should also mention that the fact that the Eighth Amendment unquestionably imposes a proportionality requirement for bail and for fines without any further limiting standards demonstrates that the framers of the amendment did not share Justice Scalia’s concern about permitting judges to exercise discretion based on the facts of individual cases. After all, at a time when most rules of law were the product of common-law adjudication, it was surely appropriate to assume that judges would exercise their discretion wisely.

  Justice White’s dissent contains a brief quotation from the Weems opinion that makes a fundamental point about the relevance of history in constitutional adjudication. In Weems, using language that Harmelin quoted in part, Justice McKenna observed:

  Legislation, both statutory and constitutional, is enacted, it is true, from an experience of evils but its general language should not, therefore, be necessarily confined to the form that evil had theretofore taken. Time works changes, brings into existence new conditions and purposes. Therefore a principle, to be vital, must be capable of wider application than the mischief which gave it birth. This is peculiarly true of constitutions.

  Justice McKenna referred to cases explicating the ex post facto clause and the commerce clause to illustrate his point. I think cases involving two other constitutional provisions even more effectively explain why a narrow focus on the precise evil that gave birth to a constitutional command, even when coupled with contemporary commentary, provides an unreliable guide to understanding the principles enshrined in the Constitution.

  At the time of the adoption of the religion clauses in the First Amendment, it was generally believed that they merely proscribed the preference of one Christian faith over another but would not require equal respect for the conscience of the infidel, the atheist, or the adherent of a non-Christian faith such as Islam or Judaism. The commentaries written by Justice Story expressly described this narrow understanding. But as we held in Wallace v. Jaffree (1985), “when the underlying principle [was] examined in the crucible of litigation, the Court… unambiguously concluded that the individual freedom of conscience protected by the First Amendment embraces the right to select any religious faith or none at all.” And of course, if our construction of the government’s duty to rule impartially enshrined in the equal protection clause had been based on contemporary understandings at the time the Fourteenth Amendment was adopted, Thurgood Marshall would have been on the losing side in Brown v. Board of Education.

  As these cases illustrate, reliance on history, even when the interpretation of past events is completely accurate and undisputed, provides an insufficient guide to the meaning of our Constitution. We should also keep in mind that even though we do, and should, rely heavily on the wisdom of individual judges in making countless decisions interpreting and applying rules of law, judges are merely amateur historians. Their interpretations of past events, like their interpretations of legislative history, are often debatable and sometimes simply wrong. Historical analysis is usually relevant and interesting, but it is only one of many guides to sound adjudication.

  I cannot finish my discussion of the Harmelin case without making these observations about Justice Kennedy’s controlling opinion. While he correctly rejected Justice Scalia’s extreme view that proportionality has no role to play in the Eighth Amendment analysis, he concluded—quite incorrectly, in Justice White’s and my view—that the sentence imposed on Harmelin was permissible. Instead of reviewing why I think it abundantly clear that Justice White had the far better of the argument on the question whether the sentence was constitutionally excessive, I shall merely comment briefly on the historical setting of the opinion.

  The justices who joined it were all relatively new occupants of the seats formerly occupied by Justices Stewart, Powell, and Brennan. Based on their votes in earlier Eighth Amendment cases, I am persuaded that all three of those then recently retired justices would have shared Justice White’s views in Harmelin. Moreover, just as the meaning of the Eighth Amendment itself responds to evolving standards of decency in a maturing society, so also may the views of individual justices become more civilized after twenty years of service on the Court.

  Recalling old friends while writing this book has led me to include this one final comment on Harmelin. At the beginning of these comments about five chief justices, I referred to my profound admiration for Nat Nathanson. I often think about the wisdom expressed in his repeated admonition to beware
of “glittering generalities.” The same kind of wisdom was occasionally expressed by Potter Stewart in terse explanations for his vote in cases not easily decided by reference to a bright-line rule. In Measure for Measure, one of my favorite Shakespeare plays, Claudio was sentenced to death for having sex with his fiancée before they were officially married. Angelo believed execution of the sentence to be necessary to avoid making a scarecrow of the law. Potter would surely have disagreed. His opinion explaining why the sentence was an act of manifest injustice might have read something like this: “I know it when I see it.” Had he had the opportunity to use the same remark to reverse the manifest injustice of Harmelin’s life sentence for possessing cocaine in an amount below the carrying capacity of a glove compartment, I would have enthusiastically joined his opinion.

  VIII

  Second among Equals

  Portrait of Judge John Paul Stevens

  THE MOST SENIOR ASSOCIATE Supreme Court justice might reasonably be called the “second among equals.” I began to occupy that status when Harry Blackmun retired, in 1994. The duties associated with the position are identical to those performed by every other associate justice, with two exceptions: he or she must sometimes substitute for the chief when the chief is unavailable and also must often assign the preparation of Court opinions when the chief is in dissent.

  The unavailability of the chief may result from his disqualification in particular cases, from illness that prevents his participation while he is unable to come to Court, or, of course, from his death. For all three of those reasons, I presided over a significant number of oral arguments and conferences during the final year of Bill Rehnquist’s tenure as chief. With one exception, I do not remember that additional responsibility as having made any significant change in the burdens associated with my regular job.

  The one exception occurred in January of 2005, when we did not know whether Bill’s developing cancer would make it impossible for him to administer the oath of office at the second inauguration of President George W. Bush. Sally Rider, his highly competent administrative assistant, provided me an especially legible copy of the oath and asked me to be prepared to act as a substitute if necessary. On the cold morning of January 20, I memorized the oath and carried a copy in my pocket when all of the members of the Court except for Bill paraded onto the Capitol platform as the national television audience watched. A seat on the platform had been reserved for Bill, but Sally did not yet know whether he would arrive in time to participate. Just moments before the ceremony began, while I was reaching into my pocket to make sure my copy was available, Bill did arrive, and he did administer the oath; he departed promptly after doing so. At the luncheon in the Capitol after the ceremony, President Bush graciously commented on Bill’s dedication even though Bill was not present.

  President-Elect Barack Obama and Vice President–Elect Joe Biden visit the Supreme Court on January 14, 2009. Pictured in the Justices’ Conference Room from left to right: President-Elect Barack Obama, Chief Justice John Roberts, Justices Stevens and Ginsburg, Vice President–Elect Joe Biden, and Justices Souter and Kennedy. Photograph by Steven Petteway, Collection of the Supreme Court of the United States.

  Justice Stevens administering the oath of office to Vice President–Elect Joe Biden on January 20, 2009. Photograph by Karen Ballard / Presidential Inaugural Committee.

  Four years later, Joe Biden, who as a senator in 1975 had voted for my confirmation, honored me by asking me to swear him in as vice president. The nine inaugurations that I have attended have all been emotional events. In 1976, when Jimmy Carter replaced Gerald Ford as president, my emotion was a combination of regret that the voters had failed to appreciate Ford’s leadership in healing the wounds caused by the Watergate scandal and pride in the fact that the change in power in our great country was being governed by the rule of law. In 2008, the emotion was the jubilation and pride shared by the sea of people stretching from the Capitol to the Lincoln Memorial who were witnessing the inauguration of our first African American president. That it was a glorious day for countless members of both political parties is confirmed by the remarks made by the outgoing President George W. Bush in the Rose Garden after the election:

  No matter how they cast their ballots, all Americans can be proud of the history that was made yesterday. Across the country, citizens voted in large numbers. They showed a watching world the vitality of America’s democracy, and the strides we have made toward a more perfect union. They chose a President whose journey represents a triumph of the American story—a testament to hard work, optimism, and faith in the enduring promise of our Nation.

  At the inauguration ceremony, before the new president arrived but after most of the invited dignitaries, including George and Laura Bush, had been seated on the platform, Mrs. Obama and her daughters, Malia and Sasha, arrived and greeted the Bushes with real warmth. They had been guests at the White House shortly before, and I had the strong sense that the girls genuinely liked the Bushes and were not just being nice because their parents had told them to be.

  I was proud to participate in that momentous event and thought of Bill while doing so.

  The only new knowledge that I acquired while presiding at oral arguments is how easy it is for the chief to keep track of the time that remains for the petitioner’s lawyer when he or she arises and begins her rebuttal. The chief is always able to give her that information because the marshal meticulously watches the time and has an assistant provide the chief with “time remaining” notes as the argument progresses.

  My most significant memory about making assignments of majority opinions when the chief was in dissent is one of satisfaction with a result that I believed to be just. A dissenting judge is never happy, because it is obvious that either the majority has come to the wrong conclusion or his own reasoning is flawed. There are times, however, when a member of the majority may be unhappy about the outcome because he or she may disagree with the result that the law requires. As Thurgood Marshall observed on more than one occasion, the Constitution does not prohibit Congress from enacting stupid laws.

  On the relatively few occasions when I had majority opinions to assign, Bill Rehnquist and John Roberts followed the practice of allowing me to make my assignments before they assigned the other majorities. That practice was courteous to me and it also made it easier for them to make an equitable disposition of the other assignments. I seldom, if ever, made an assignment without asking my first choice about his or her willingness to take on the task. And there were few, if any, occasions when my preferred author voiced any objection.

  The task of assigning majority opinions is much less burdensome for the “second among equals” than for the chief justice because he or she has relatively few opinions to assign and is not confronted with the need to distribute the work equitably among all nine justices. My principal guideline in making assignments was my judgment about which eligible author would produce the best draft. There were occasions when I kept assignments for myself either because I felt that I had learned some things about a case that I wanted to emphasize in an opinion or because keeping a case or two for myself avoided the risk of receiving a less desirable assignment from the chief. My memory of certain earlier assignments may also have influenced my choice in a few instances.

  For example, cases raising First Amendment issues are typically the subject of extensive coverage in the press. I had the impression that Warren Burger would assign the opinions in such cases to himself when the First Amendment claim was vindicated but to Byron White when the opinion would receive a hostile reception on the editorial pages. That practice contributed to Byron’s reputation in the press as an enemy of the First Amendment. Because of that history, I tried to avoid assignments that might be interpreted as associating a particular justice with a particular issue.

  In cases in which the Court was almost evenly divided, Warren Burger would often assign the opinion to the justice who had the most doubts about the outcome. His reasoning,
I believe, was that even if the author changed his mind while drafting the opinion, he would presumably still be able to speak for the Court because the original dissenters would be likely to join his opinion.

  I thought that practice wise for a quite different reason. As a practicing lawyer I often began my representation of a client with uncertainty about the validity of his or her position but found that my efforts to justify that position convinced me that it was absolutely right. As a justice there were a few occasions when I changed my mind about the outcome while I was working on the draft of an opinion, but much more frequently I became even more certain that I was right as the drafting process progressed.

  In addition to following Warren Burger’s example, I also frequently reflected about what I thought at the time was an unwise assignment by Justice Brennan shortly after Justice Kennedy joined the Court. The case of Patterson v. McLean Credit Union presented us with the question whether racial harassment of Patterson, a black employee, violated a federal statute (42 U.S. Code Section 1981) prohibiting “racial discrimination in the making and enforcement of private contracts.” The court of appeals had ruled that conduct that occurred after the contract was formed did not violate the statute. The case was argued twice. At the conference after the first argument, Justice Kennedy voted against Patterson, but the majority decided to have the case reargued to evaluate whether an earlier decision interpreting Section 1981 to apply to private contracts as well as public contracts should be reconsidered. After the second argument, Justice Kennedy changed his mind and was one of the five justices voting in Patterson’s favor. Instead of assigning the majority opinion to Justice Kennedy—who obviously had had difficulty with the case—Justice Brennan assigned the opinion to himself. Rather than persuading Justice Kennedy to join, however, the draft must have revived Tony’s doubts, for he changed his mind again and ended up writing the majority opinion ruling against Patterson. Congress later overruled that decision by enacting the Civil Rights Reform Act of 1991. Even though Tony might well have written the same unfortunate opinion if Bill had assigned the majority to him, a lesson that I learned while practicing law convinced me that it would have been wiser to ask him to draft the final explanation for his vote at conference.