April 2013 - Pg 12-Book Review
Stevens’ review of early court cases illuminates how the Court molded the nation. In the opinions discussed, we see the groundwork for the Federal government exerting power over states and individuals, despite the Founding Fathers’ deep concern about vesting too much power in a centralized government. The Federal government’s reach is often at the heart of the cases Stevens discusses and when it is not the Federal government, it is a state or municipal power grab on which the Justices were called to approve or disapprove.
Stevens’ biographical sketches of various Chief Justices detail the application of Constitutional principles to labor law, Presidential powers–especially during war, civil rights, abuses of law enforcement power, free speech and the death penalty. In spite of increasingly stiff restrictions on cases the Supreme Court will decide, the numbers of cases filed are ever increasing. Stevens cites 8,521 cases filed in 2005 compared to 1,510 filed in 1946. Compare those numbers, then, to O’Connor’s stories of a Federal Judiciary with so little work in the early days of the Republic that there was some question as to whether a Supreme Court was even needed.
It is interesting to compare the inferences by Stevens and O’Connor about different justices. It seemed that O’Connor had only limited respect for Justice William O. Douglas, and Stevens criticizes Douglas’ reasoning in a reproductive rights case that he cites. Likewise, both Justices commentary on Thurgood Marshall, both as a Justice and as an advocate arguing cases for the NAACP in front of the USSC, portray an impressive man. Though critical of Chief Justice Earl Warren’s grasp of some areas of the law, Stevens gives him high marks for opinions in which the Constitution is applied to reject precedent set by earlier decisions.
Stevens compares two Justices, decrying Justice Clarence Thomas’ support of the original intent of the Constitution, comparing him unfavorably to Thurgood Marshall.
If Stevens disparages Thomas and Rehnquist, O’Connor only questions the judgment of those from far in the past, including famous anti-Semitic Justice James Reynolds or the racist Chief Justice Taney. Stevens, of course, never misses a chance to forward his opposition to gun rights. On no other topic does he express such emotion unless it is about the gold stripes Chief Justice Rehnquist added to his judicial robes.
One might think that Justices of opposing views might be unfriendly, but in both Stevens’ and O’Connor’s books, we find stories about respect and friendship among Justices from opposite sides of the political spectrum. I was most impressed by Stevens’ comments on Justices Holmes and White, who fought on opposite sides of the Civil War, but were reported to have been friends who accorded one another great respect. In addition, both authors cite the practice of handshakes all around before arguments and both detail how a variety of social practices inside the court maintain cordiality. Social traditions “played an important role in maintaining the cordial relations among the nine individuals who sometimes used pretty strong language when expressing disagreement with the views of the majority on more important issues,” Stevens writes, later adding, “I have no memory of any member of the Court raising his or her voice during any conference over which I presided or showing any disrespect for a colleague during our discussions.”
A lot of books, biographies and autobiographies have been written about the Supreme Court and its Justices. Like the blind men describing an elephant based on the parts they contacted, these authors come together to illustrate the strengths and the fragility of our Court. For me, part of the pleasure of Out of Order, came from listening to the vocal inflections of Sandra Day O’Connor as she read it as an Audible book; Stevens book, more complex and lengthy, was better read in the traditional manner. Both were thought-provoking and left me feeling that I knew a bit more about the highest court in the land.
[End of Article.
Please enjoy the next article.]