- Courtesy The New York Times
Of course this was inevitable, but I wish he had a few more years left in him. That’s greedy on my part, though. John Paul Stevens, Associate Justice, and of late, the oft-leader of the minority, announced his retirement last week. Nominated by Gerald Ford in 1975 and confirmed unanimously later that year, Justice Stevens has been a critical component of nearly every Supreme Court decision of the past 35 years.
A few years ago, then-Professor at Georgetown University Law Center (and now Principal Deputy Solicitor General) Neal Katyal, came to an event at Pace Law School to deliver a lecture on his work and his achievement of securing a 5-3 victory before the Supreme Court in the landmark Hamdan v. Rumsfeld, which held that the Bush Administration’s military commissions lacked the power to proceed because they violated both the Geneva Conventions and the Uniform Code of Military Justice (“UCMJ”). After discussing the technical merits of the case, and answering some follow up questions about the law, the Military Commissions Act and his upbringing as the child of immigrants, he gave an anecdote about Justice Stevens:
In writing for the majority in Hamdan, Justice Stevens recounted that historically, the difference between a military commission and a military court-martial was simply one of jurisdiction, in order to “protect against abuse and ensure evenhandedness under the pressures of war,” and this notion had been traditionally upheld, save for one “glaring” exception. In 1945, as the American military forces regained control over the Philippines, the Commanding General of the Japanese Imperial Army, General Yamashita, surrendered. Yamashita was arraigned and tried before a military commission, and after two months of trial, was sentenced to death. The Supreme Court, in in re Yamashita, upheld the denial of General Yamashita’s writ of habeas corpus. Justice Stevens recalled that in that case, Justice Wiley Rutledge, joined by Justice Frank Murphy, wrote an “unusually long” and “vociferous” dissent, arguing that the procedures and rules of evidence employed by the military commission in Yamashita’s trial departed greatly from those used in court-martials. Subsequently, after great criticism of the decision, the UCMJ was expanded to include defendants in Yamashita (and now Hamdan’s) position.
In Hamdan, Justice Stevens recalled the Court’s decision in in re Yamashita, and relying on Justice Rutledge’s dissent, and the current state of the UCMJ, found that the military commission’s rules for the trial of Hamdan were in fact, illegal. Justice Stevens had effectively salvaged Justice Rutledge’s dissent, and vindicated him nearly 60 years later. Precedent and stare decisis aside, occasionally the Supreme Court realizes that a past decision was incorrect, or that the circumstances of the present are sufficient to warrant a deviation from a past precedent.
What makes this situation more interesting than others is that Justice Stevens clerked for Justice Rutledge, when in re Yamashita was decided, and in all likelihood, had some part in drafting that dissent. Justice Stevens not only redeemed his old boss, but redeemed himself.
A few days ago, The New York Times asked Justice Stevens’ former clerks to provide a memory of their work with him. One of these sticks out, and literally made me laugh out loud. I post it below:
ONE of Justice Stevens’s trademarks is the courteousness with which he treats the lawyers who appear before the Supreme Court. When he wants to elicit information or make a point during oral argument, he typically interrupts the lawyer with the gentle preface, “May I ask you a question?”
During William Rehnquist’s tenure as chief justice, a lawyer was arguing in the court for the first time. When asked a question by Justice Anthony Kennedy, the nervous lawyer started her response with, “Well, Judge — ”
Chief Justice Rehnquist interrupted her. “That’s Justice Kennedy,” he said.
Shaken, the lawyer continued. A few minutes later, she responded to Justice David Souter by saying, “Yes, Judge.” Chief Justice Rehnquist corrected her again: “That’s Justice Souter.” A couple of minutes later, she called Chief Justice Rehnquist himself a judge.
The chief justice leaned forward, his deep voice now at its sternest, to say, “Counsel is admonished that this court is composed of justices, not judges.”
Before the lawyer could say anything, Justice Stevens interjected: “It’s O.K., Counsel. The Constitution makes the same mistake.”
— JEFFREY L. FISHER, associate professor at Stanford Law School and clerk from 1998 to 1999
