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Justice Unbound—A Commentary by Linda Greenhouse ’78 MSL

The following commentary was posted on newyorktimes.com on December 2, 2010.

Justice Unbound
By Linda Greenhouse ’78 MSL

Watching the post-retirement emergence of Justice John Paul Stevens is almost enough to make me a fan of term limits for Supreme Court justices.

Not to be misunderstood — I’m not suggesting that Justice Stevens should have ended his 35-year Supreme Court career a moment sooner than he did. But his new role as public truth-teller, not to say as aging rock star — posing in Wrigley Field’s empty bleachers for the benefit of the “60 Minutes” cameras and pointing to where, at the age of 12, he saw Babe Ruth hit his famous “called shot” home run in the 1932 World Series — makes me think what a great public resource Supreme Court justices can be if they retire with the appetite for living a public life and the vitality to do it.

Not so long ago, it was typical for justices to remain on the court until they died (the exit strategy of 49 of the 103 justices not currently serving) or became enfeebled by age (recall the explanation that Justice Thurgood Marshall gave when he retired in 1991 at the age of 83: “I’m old and falling apart.”) I can’t remember when the country was blessed by the presence of three retired justices who can get themselves from one place to another unaided.

Justice Stevens, a force of nature, still plays tennis and golf at 90. Justice Sandra Day O’Connor, who left the bench five years ago at 75, basically lives on airplanes, traveling the country in support of her causes, judicial reform in the states and civics education in the schools. Even Justice David H. Souter, who retired last year at 69 to reclaim a quiet life in his native New Hampshire, keeps remodeled chambers in the federal courthouse in Boston and made a cameo appearance last Sunday on “60 Minutes” to talk about Justice Stevens. Justice Souter once vowed publicly that cameras would roll into the Supreme Court’s courtroom only over his dead body, and I could scarcely have been more surprised to find him on network television than if he had sprouted wings.

These three former justices are very different from one another, and they will find different outlets their time and energy. What they share is a capacity for blunt talk. Justice O’Connor, while discreet, has made clear her dismay at seeing some of her own work “dismantled” by the current court. Justice Souter, still more discreet, nonetheless used his commencement address at Harvard last spring in part to describe reliance on the Framers’ original understanding as a “simplistic” method for interpreting the Constitution. Freed from the strictures of incumbency and the need to garner concurring votes, each is in a position to help the public understand a bit more about how a Supreme Court justice thinks, as well as about the Supreme Court itself, its processes and its challenges.

When asked in recent years about his increasingly liberal jurisprudence, Justice Stevens usually replied that it was really the court that had changed, the result of nearly all new appointees during his tenure having been more conservative than the justices they replaced. That always seemed a somewhat coy response, given that there were important areas of doctrine, including abortion and racially conscious affirmative action, on which his views actually did shift to the left. But the basic validity of his point comes through in his New York Review of Books essay on the death penalty.

The essay is a rueful account of how, in his view, successive justices collectively betrayed the promise of a rational and fair death penalty, a promise that he had believed in when, as a new justice in 1976, he wrote one of the three opinions that permitted the states to resume executions. Except for a few details, including the use of the phrase “regrettable judicial activism” to describe the court’s subsequent decisions, the essay tracks the opinion Justice Stevens wrote in 2008 when he renounced the death penalty. That opinion was an inventory of wrong turns, leading to his observation that the court’s “more recent cases have endorsed procedures that provide less protections to capital defendants than to ordinary offenders.”

Although neither the 2008 opinion nor the new essay are without ambiguity on the question, I read them not as the statements of a categorical abolitionist, but rather of a judge who might still support a careful and limited use of capital punishment if only the court itself had not reintroduced the arbitrariness and unfairness that the justices of the 1970’s thought they had managed to eliminate.

Although the Supreme Court overturns its own precedents with some regularity, justices rarely disavow or even express second thoughts about their own previous votes. So such an incident is always noteworthy, and in his essay, Justice Stevens recalls one. In 1987, the court divided 5 to 4 in rejecting a challenge to the death penalty as racially discriminatory. The challenge was based on a statistical study of capital punishment in Georgia, showing that killers of whites were much more likely to be sentenced to death than those whose victims were black. Justice Lewis F. Powell Jr. wrote the majority opinion in that case, McCleskey v. Kemp, finding that the statistical evidence did not demonstrate a constitutional violation. In The New York Review of Books, Justice Stevens notes that Justice Powell later told his biographer that he regretted his vote in that case.

The book that Justice Stevens referred to is “Justice Lewis F. Powell Jr.” by John C. Jeffries Jr., one of my favorite judicial biographies. The author, a former Powell law clerk, later dean of the law school at the University of Virginia, describes Justice Powell’s regret at having cast the deciding vote in Bowers v. Hardwick, the 1986 case that rejected a gay rights claim and upheld Georgia’s criminal sodomy law — a decision the court was to overturn 17 years later in Lawrence v. Texas. I remembered this well, but had forgotten a conversation on the death penalty that the book recounts. The justice’s second thoughts were even more conclusive than Justice Stevens suggested.

In 1991, four years after Justice Powell had left the court, his biographer asked him whether he would change his vote in any case and reported this colloquy:

“Yes, McCleskey v. Kemp.”

“Do you mean you would now accept the argument from statistics?”

“No, I would vote the other way in any capital case.”

“In any capital case?”

“Yes.”

“Even in Furman v. Georgia?” [This was the 1972 decision, from which Justice Powell dissented, that struck down every death penalty statute in the country.]

“Yes. I have come to think that capital punishment should be abolished.”

Justice Stevens has said that “learning on the job” was crucial to his own time on the court, and he is willing to believe that others can learn as well. In a speech two months ago to the National Legal Aid and Defender Association in Washington, he criticized a 20-year-old decision, from which he had dissented, that upheld a life sentence for a first-time offender convicted of possessing a pound and a half of cocaine. The question in that case, Harmelin v. Michigan, was whether the sentence was so disproportionate to the crime that it amounted to cruel and unusual punishment, in violation of the Eighth Amendment.

The majority rejected the application of a proportionality principle that a ruling eight years earlier had appeared to endorse. In his speech, Justice Stevens noted that the court’s membership had changed in the interval, and that the 5-to-4 majority included the three newest justices (he didn’t name them, but they were Justices O’Connor, Souter and Anthony M. Kennedy.)

Justice Stevens then suggested that the Harmelin decision might no longer be good law, given the court’s decision last spring to overturn a sentence of life without parole for a 16-year-old who committed a violent but non-capital crime. In that case, Graham v. Florida, five justices, in a majority opinion by Justice Kennedy, held that life without parole can never be a constitutional sentence for a juvenile who has not committed murder. Chief Justice John G. Roberts Jr. provided a surprising sixth vote to overturn the particular sentence, but said that each case should be decided individually.

That was a “thoughtful” opinion, Justice Stevens said. Just as the meaning of the Eighth Amendment has evolved over time, he added, “so also may the views of individual justices become more civilized after 20 years of service on the court.”

Did he mean himself? Or was he referring to Justice Kennedy, approaching his 23rd year on the court? Or, projecting ahead 15 years from now, did he mean Chief Justice Roberts? It was a tantalizing statement.

After renouncing the death penalty in the spring of 2008, Justice Stevens continued to vote to uphold death sentences when he believed that the court’s precedents led to that conclusion. In this stance, he differed from earlier death-penalty opponents on the court, Justices William J. Brennan Jr. and Thurgood Marshall, who dissented from every case that upheld a death sentence. For them, there was nothing to discuss. Justice Stevens, by contrast, wanted to stay in the conversation. He is still there.