The Lines of Shakespeare, Scalia, Stevens

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With the new round of questions about whether William Shakespeare was a literary impostor, brought on by the movie Anonymous, I thought it was time to go back and ask Justice Scalia what he thought.

Scalia, who uses literature and lyrics to make his legal points, often quotes from Shakespeare. I recall in his first term he invoked lines from Henry the Fourth, Part I, as he dissented in an affirmative action case from Santa Clara County, California:

 Glendower: I can call Spirits from the vasty Deep.

Hotspur: Why so can I, or so can any man. But will they come when you do call for them?

But Scalia has been among those who in the past voiced doubts that Shakespeare, with his limited schooling, could have produced such a great body of work. When I asked last week, Scalia was uncharacteristically reluctant to take up the subject. He begged off that he wasn’t an expert on the topic and didn’t have an answer. He would only say there was room for doubt.

When I asked about his favorite Shakespeare work, Scalia said Macbeth — because when he was in high school he got to play the lead. When he first told me years ago about that experience, he said he considered it quite a feat: “Do you know how many lines I had to memorize?!”

 On a related Scalia note, retired Justice Stevens captures the wise-cracking Scalia his new memoir, Five Chiefs. Stevens wrote that, “When the microphones are turned off, a justice will occasionally exchange a comment or two with his immediate neighbor. For most of our careers, Nino Scalia and I sat next to each other, and I was the beneficiary of his wonderfully spontaneous sense of humor. One morning when we heard a case involving a defendant who had refused to answer questions about the crime under the investigation but volunteered a long incriminating statement about a more serious offense and a second case in which the defendant had refused to sign a written confession while verbally describing inculpatory facts in great detail, Nino whispered to me that this must be our ‘dumb defendant day.’”

Last week when I interviewed Justice Stevens about the new book, he elaborated on his colleagues and Scalia’s name came up often. As he addressed recent calls by critics for changes in the Supreme Court’s rules on conflicts of interest, Stevens said he didn’t think any revisions were needed. (See story and comments about Justice Clarence Thomas) “I really don’t have any concern that people are failing to disqualify themselves when they should,” Stevens told me. He added that, “The closest, I suppose, was Nino and the vice president,” referring to a 2004 case involving then-Vice President Dick Cheney that arose soon after the pair had gone duck-hunting together. “But I’m sure that didn’t have any impact on his vote.”

Add another critic to the Supreme Court’s recent decision in Connick v. Thompson: Retired Justice Stevens on Monday night denounced his old colleagues for ruling that a former Louisiana Death Row inmate could not sue prosecutors who had concealed blood evidence that might have shown his innocence.

In that 5-4 case in late March, Justice Clarence Thomas wrote for the conservative majority and Justice Ruth Bader Ginsburg wrote for liberal dissenters. (I referred in an earlier post to Ginsburg’s passionate dissent from the bench in the case focused on prosecutors’ duty to turn over exculpatory evidence.)

On Monday night, at a New York dinner sponsored by the Equal Justice Initiative, Stevens said he thought Ginsburg had the better argument and called the facts of the Thompson case “shocking.” Stevens then criticized a separate opinion Justice Antonin Scalia had filed in Connick v. Thompson. Stevens, who stepped down last summer, said Scalia had “either overlooked or chosen to ignore the fact that bad faith, knowing violations [of the rule for turning over evidence] may be caused by improper supervision” in a prosecutor’s office, this one in New Orleans.

Stevens said “an overzealous prosecutor might … [make] it clear [to underlings] that violations of the rule — if undetected by courts — will never give rise to discipline and may even be rewarded. Prosecutors’ electoral incentives and the facts of this case demonstrate that such prosecutorial malfeasance is of more than hypothetical concern.” Stevens said judges should consider a new standard that would hold elected District Attorneys liable for flagrant violations of constitutional rights committed by their assistants.

With only two women among the nine justices, one line of thinking goes, President Obama will pick a woman. No, another argument goes, he would not feel so compelled and, anyway, he should save his strongest woman candidate for when pioneering feminist Justice Ruth Bader Ginsburg, 77, retires.

The president needs to go young, for his own legacy at the Court. No, age doesn’t matter, and isn’t 60 the new 50 anyway? What about religion? With the one Protestant (John Paul Stevens) retiring, the president can’t appoint another Catholic or Jewish justice, can he? But who these days would object to a nominee based on her (or his) religion? What about a nominee beyond the “judicial monastery,” as Senate Judiciary Committee Chairman Patrick Leahy likes to say? Yet what about all the baggage a governor or other politician might bring to the confirmation hearings, not to mention the problem with getting up to speed on the Court. And on that score, shouldn’t President Obama choose someone who can win over centrist conservative Anthony Kennedy? Or, should he focus on finding a “Scalia of the Left”?

Such are some of the many scenarios that preoccupy journalists these days. Just as I am at the point that all theories spawn counter-theories and I have over-thought the whole thing, I am reminded that President Obama likely knows more about constitutional law than any president and is coming at this in his own distinct way. Obama is one of only two U.S. presidents who graduated from Harvard Law School. Rutherford B. Hayes was the first. Obama was elected to the top editor position (president) of the Harvard Law Review, the first African American to attain such an honor, and he went on to teach constitutional law at the University of Chicago.

“Overall, Obama has, and had then, a problem-solving orientation,” Harvard Law Professor Laurence Tribe, a mentor to Obama in Cambridge, told David Remnick for his new book The Bridge. “He seems not to be powerfully driven by an a-priori framework, so what emerges is quite pragmatic and even tentative. It’s hard to describe what his presuppositions are, other than that the country stands for ideals of fairness, decency, mutual concern, and the frame of reference that is established by our founding and the critical turning points of the Civil War and the New Deal, as a frame to identify who we are. When Earl Warren was Chief Justice, he would ask, after an oral argument, ‘But is it fair?’ For Barack, the characteristic question is, ‘Is that what we aspire to be as a country? Is that who we are?’”

Last year, President Obama made the choice of Sonia Sotomayor essentially on his own. He weighed advice from staff, interviewed finalists, made a preliminary choice, and then spent a weekend making sure he was satisfied. No doubt he’ll follow a similar pattern this time, whatever narrative most appeals to him and whoever best meets the question of “who we are.”

Could Freud Help the Supreme Court?

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It has now been two weeks since Justice John Paul Stevens announced his retirement, and from last year’s pattern and what White House aides are saying now, numerous interviews already have been conducted. About ten people are in the mix, with three inside favorites: U.S. Solicitor General Elena Kagan and U.S. Appeals Court Judges Diane Wood, of Chicago, and Merrick Garland, of Washington, D.C. Last year, within about two weeks of Justice David Souter’s May 1 retirement announcement, then-Judge Sonia Sotomayor had been interviewed by a half dozen top administration lawyers. President Obama interviewed her on May 21, offered her the job on May 25, and made his choice public on May 26. Read her dramatic recounting of his call to her here.

President Obama is weighing what he wants in a justice this time around and how much of a fight he can expect with Republicans – who’ve already thrown up plenty of hurdles to his lower court nominees. (My early take on his dilemma is here.) Last week I was on a panel at New York University that explored some of Obama’s choices as we primarily considered how a justice’s life experiences influence his or her decisions.

 The most senior member of our group, NYU Professor Norman Dorsen, who was a clerk to Justice John Marshall Harlan (1955-1971), talked up the value of a multitude of backgrounds on the bench. Harlan served with former California governor Earl Warren, former Attorney General Tom Clark, and former Securities and Exchange Commission member William O. Douglas. Harlan had been a prosecutor, long-time member of a Wall Street firm and, briefly, a U.S. appeals court judge. All nine of our current justices, of course, were U.S. appeals court judges (and not briefly) before being elevated to the Supreme Court.

George Washington Law Professor Jeffrey Rosen offered the most provocative argument of the day, saying that as much as life experience matters for a justice, it is “ultimately less important than the relationship with Mommy and Daddy.” He used Stevens as an example. He said that he was sure the justice was shaped, for example, by his World War II service. But he said he found more determinative to Stevens’s rise and actions on the bench that his mother constantly spurred his ambition by saying he’d never be as good as his Chicago businessman father. So, Rosen quipped, with a nod to Sigmund Freud, he hoped Obama’s vetters were not just reading candidates’ rulings but looking at relationships with Mom and Dad. Watch the discussion moderated by Barry Friedman, whose book on the Court, The Will of the People, came out last fall, here. And look for a nomination around the second week of May.

Now that President Obama has officially launched the process to replace Justice Stevens, who announced his impending retirement on Friday, it is interesting to recall the approach President Ford took in 1975. While it represents a more non-ideological model than today’s Supreme Court selection process, there are likely to be similarities in administration screening, timing — and an eye to the political atmosphere in the nation. 

Justice William O. Douglas, who had been in failing health for months and being pressured by some colleagues to retire, wrote to Ford on November 12, 1975 to let him know he would step down. (Douglas had served since 1939; he holds the record for longevity on the bench.) 

Attorney General Edward Levi shepherded the process to name a successor. (This time around it will be Obama’s White House Counsel, Robert Bauer.) Levi gave Ford a list of ten candidates, which he and his staff had pared down from a field of twice that number. Levi also included a personal note that said the top three on which he “would place greatest emphasis” were U.S. Appeals Court Judge Stevens, Solicitor General Robert Bork, and Dallin Oaks, who was then president of Brigham Young University. Ford also initially was drawn to U.S. Appeals Court Judge Philip Tone, who, like Stevens, was on the Chicago-based 7th Circuit. 

Levi and the rest of the team had set an informal age limit of 55. Stevens was exactly that. Levi, who knew Stevens from Chicago legal circles and steered Ford particularly to him, deemed Stevens “a judge of the first rank, highly intelligent” and “a moderate conservative in his approach to judicial problems.” Of Bork, who was known for his legal brilliance yet had played a controversial role in the 1973 Watergate-related “Saturday Night Massacre,” Levi said, “If Mr. Bork was appointed to the Court, there would be little doubt of his intellectual capacity for the work. There would be equally little doubt that, on the Court, Mr. Bork would provide strong reinforcement to the Court’s most conservative wing  … .” 

President Ford did not want an ideological lighting rod. He put a little “No. 4” next to Bork’s name on the list he carried around. He gave Stevens “No. 1” and penned himself a separate note regarding Stevens: “Supreme Ct – good man.” 

Stevens’ name was announced November 28, a little more than two weeks after Douglas had made his retirement official. (Then, as now, administration aides had been working on their lists months before the official retirement announcement.) In 1975, many House and Senate leaders did not know the low-key Stevens, so initial reactions were dominated by questions. House Majority Leader Tip O’Neill said, “Who? … I never heard of him.” 

Senate Majority Leader Mike Mansfield asked whether the reputed moderate  jurist would “cause trouble with the Reagan people,” known for their highly charged conservatism and preparing to mount a presidential challenge to Ford.

Today, the Obama administration cannot help but take account of upcoming elections, weighing how a nominee might fare in confirmation hearings that would be held as the midterm campaign season begins and how Obama’s Court choice could then help or hurt Democrats in the fall elections.

A colleague who covers the Court asked that in an e-mail today. He said he had thought that Justice John Paul Stevens was ready to retire at the end of this term but said the justice’s recent remarks might be read as a signal he truly is undecided and may stay. My response: He’s leaving.

I base that not only on what Justice Stevens has said in interviews but that he is even giving interviews.

Justice Stevens does not like to talk about himself. I have interviewed him several times over the years but mostly under circumstances focused on other people, for example, in 2001, when a Stevens friend and former associate (Kenneth Manaster) wrote a book on a 1969 judicial investigation in which Stevens played a key role, or when I needed information on Sandra Day O’Connor and Antonin Scalia. Only recently has Stevens indulged questions centered on his own work and legacy.

When I saw Justice Stevens in his chambers last week and asked about his retirement plans, he said, “I still like the job, there’s no doubt about it. That’s why I still keep my options open.” With some disbelief, I said to him, “Have you really not yet decided?” He responded, “Wait and see.”

His remarks on retirement were in keeping with what he had told me last October in an interview and what he told the New Yorker, New York Times and Washington Post in recent weeks.

I think the fact that Justice Stevens says he is torn reveals how hard it is for someone who loves his job — and has been at it for nearly 35 years — to say he is packing up his briefcase for good. I think he might also think it is better to wait a little longer into the term, perhaps until after oral arguments, which conclude on April 28. (He turns 90 on April 20.) In the past, retiring justices did not announce they were stepping down until the end of the term in late June, after all the decisions had been issued (see my post of February 16). In recent years, some justices have announced in early spring, partly to give the president more time to choose a successor. David Souter made his decision public on May 1 last year, in large measure, however, because it had leaked out.

Although Justice Stevens is now more willing to talk about himself in interviews, it is still like yanking teeth. He tends to be a one-sentence-answer kind of guy. He has a steady approach, a flat Midwestern twang — and nothing especially riles him. That is the exact opposite of Justice Scalia, who I happened to visit after my interview with Stevens. When Stevens does retire, Scalia will become the longest tenured justice on the bench.

Stevens abhors the conservative shift in the Court, yet he talks about it with a shrug: “There are a lot of cases that I’m disappointed with and I think they (the majority) make mistakes. But you learn to live with it.”

As Supreme Court justices circulate draft opinions among themselves and respond to each other’s writing, no two justices engage in a tit-for-tat like Antonin Scalia and John Paul Stevens.

These defenders of conservatism and liberalism, respectively, disagree on big issues, of course, but they are also the two most likely to tussle down in the weeds — on the meaning of a statute, interpretation of precedent or nuances of a legal test. It is not unusual for Scalia to make some assertion that sets off Stevens, who then fires back in his opinion, which prompts Scalia to return the volley, which gets Stevens going again.

That happened in this week’s case of Shady Grove Orthopedic Associates v. Allstate Insurance, a complicated dispute that led to a 5-4 decision letting certain class-action lawsuits barred from state court be heard in federal court. Scalia wrote for a plurality and needed Stevens’s fifth vote for the judgment. Stevens penned a separate concurring opinion. The two feuded over legal reasoning, and by the time Scalia was done answering Stevens’s escalating arguments he had crafted a whole separate section of his opinion that opened with the sentence: “A few words in response to the concurrence.” Several hundred words followed.

As they poked holes in each other’s rationale, Scalia charged Stevens with being “unfaithful” to statute and “greatly exaggerat[ing]” how Scalia had spurned a precedent. Stevens labeled Scalia’s legal test “empty” and said his interpretation of the disputed law was “not much more determinative than mine.” The case had been argued on Nov. 2, and some of this back-and-forth likely led to its being unresolved for nearly four months.

Their dueling rhetoric contributed to the delay in Citizens United v. Federal Election Commission, which came out January 21, after the case had been argued in September and put on a fast-track of sorts. As I noted in an earlier post (Jan. 24), Stevens devoted much of his dissenting opinion in that case to Scalia’s concurrence. (Justice Anthony Kennedy had written the majority opinion.)

Stevens, 89, and Scalia, 74, are two of the more intellectual members of the bench, and they like and respect each other. Scalia revels in this verbal jousting. Stevens finds it more wearying. “He’s got to have the last word,” he once told me of Scalia. “But is it really worth it?”

I think they’ll both miss it when Stevens is gone.

I know exactly where I was when I first saw the headline of an ABC news story earlier this month that said, “White House Prepares for the Possibility of Two Supreme Court Vacancies.” I was in the San Francisco radio studio of Ronn Owens about to go on the air to talk about Justice Scalia, the Citizens United case and current term. Owens said the ABC story had just appeared on-line that February 4 morning and predicted the retirement subject would draw calls. “Two vacancies?” I said doubtfully. “Really?” As people who have since read the posting by longtime ABC producer Ariane de Vogue know, it said: “Court watchers believe two of the more liberal members of the court, justices John Paul Stevens and Ruth Bader Ginsburg, could decide to step aside for reasons of age and health.”

Ariane’s post became part of a new round of speculation among those of us who would rather be first, than second, third, or really left in the dust, on a retirement story but who simply do not know the full intentions of these older justices. Justice Ginsburg has told me and others that she does not want to leave the Court in the next couple of years, and seeing how vigorously she approaches the job, I cannot believe she is seriously thinking of retiring. Yet she has twice battled serious cancer and will turn 77 in March. I believe she is healthy but I don’t know for certain — and the Ginsburg rumor is still going.

As I have previously written in these posts, I think Justice Stevens will retire at the end of this term. The question for me is: When would he announce it? He will turn 90 on April 20, and oral arguments for the term will be over at the end of April. Maybe he would choose then to let President Obama know. Maybe he would wait until the end of the term in June, when retiring justices used to do it.

The opportunity of a lifetime appointment to the Supreme Court doesn’t come around often for presidents, or for the reporters who cover it. Nomination stories become such big deals to us that I can say without much exaggeration that since I began writing about the Court in 1989, I can remember almost every minute of the days that we got a retirement announcement. Here, going back about a quarter-century, is when retiring justices told us when they were going:

June 17, 1986: Chief Justice Warren Burger publicly revealed his retirement, effective at the end of that current term. Burger had privately told President Reagan three weeks earlier, on May 27, that he would step down.
June 26, 1987:  Justice Lewis Powell announced his retirement on the last day of the annual term.
July 20, 1990: Justice William Brennan retired during a summer recess, after he had suffered a stroke.
June 27, 1991: Justice Thurgood Marshall announced his retirement on the last day of the term. At a news conference the next day, he answered a question about his health with memorable gruffness: “I’m getting old and falling apart.”
March 19, 1993: Justice Byron White wrote to President Clinton to let him know he would retire that summer. This was the earliest official notification in recent decades. White said he wanted Clinton to have plenty of time to choose his successor for the next term. (Clinton selected Ginsburg.)
April 6, 1994: Justice Harry Blackmun informed the White House he would retire at the end of the term.
July 1, 2005: A few days after the annual term ended, Justice Sandra Day sent a letter to President Bush saying she would retire. (I was finishing my manuscript of her biography at the time, and I really remember every moment of this astonishing day.) She said she needed to leave to care for her ailing husband but would not step down until her successor was named. It turned out she stayed on until January 2006, when Samuel Alito was sworn in.
September 3, 2005: Chief Justice William Rehnquist died in office, giving President Bush a second seat, along with O’Connor’s, to fill.
May 1, 2009: Justice David Souter sent a note to President Obama confirming that he was retiring, after news reports the previous night said Souter already had informally passed the word.

Since I’ve been on the road talking about Justice Scalia, I’ve consistently been asked about the fact that six of the nine justices are Roman Catholic and about how that affects the Court’s opinions, particularly those of Scalia. I devoted a chapter to Scalia and religion — Passions of His Mind — and, despite how touchy the intersection of personal belief and judicial views can be, I am ready to field these questions.

Recently, however, I’ve felt a shift in the line of questioning, as happened this week at Yale, and it comes down to a query fraught with more hazards: Would it be politically difficult for the president to choose a Catholic for any new vacancy? And would it be almost as difficult to pick someone who is Jewish? Right now, serving with the six Catholics (Chief Justice John Roberts and Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, Samuel Alito, Sonia Sotomayor), are two Jewish justices (Ruth Bader Ginsburg and Stephen Breyer) and one Protestant. That one Protestant, Justice John Paul Stevens, will turn 90 in April and is likely to be the next to retire. I’ve heard a few professors say if Stevens steps down, it would be nearly impossible for Obama to chose a Catholic, or maybe even someone who is Jewish, because of the current court makeup.

I do not know how religion would affect the choice, but here’s some context from where I sit, along with the thoughts of two of my subjects:

The Supreme Court had long been dominated by Protestants, of course, like the White House and Congress. When Catholics became a five-member majority after the 2005 and 2006 appointments of Roberts and Alito, it barely made the news, however, because of faded anti-Catholic sentiment and evolving religious pluralism in America. After recent abortion-rights disputes, the religious backgrounds of the justices became a topic for discussion, but still with unease. As I’ve written, lawyers often express thoughts about how Catholicism influences legal opinions only privately, reflecting their discomfort with the suggestion that either Scalia is being disingenuous about how his beliefs influence him (he says they do not) or that serious Catholics cannot think nonreligiously about legal matters.

For his part, Justice Scalia has said he was “very pleased and sort of proud that Americans didn’t pay any attention” when the bench suddenly had a Catholic majority.

My earlier biographical subject, Sandra Day O’Connor, an Episcopalian, comes at it differently. And when I was asked about the justices and religion in New Haven this week, I found myself recalling something she said last fall. During a panel discussion, O’Connor emphasized the value of diversity on the bench — in sex, professional experience, geography and religion. “I don’t think we should have nine clones up there,” O’Connor said, primarily complaining at that point that all current justices had been elevated from lower U.S. appeals courts. When asked about geographical representation, O’Connor took the initiative to go beyond the question and declared, “I don’t think they should all be of one faith and I don’t think they should all be from one state.”

As legal commentators continue to debate last Thursday’s decision in Citizens United v. Federal Election Commission, I want to add a few observations related to Justices Scalia and Stevens. As Stevens read his poignant — sometimes halting — dissenting statement from the bench, he noted that the “seed that flowered” in the majority opinion had been planted by dissenters in the 1990 Austin v. Michigan Chamber of Commerce. In his written opinion Thursday, Stevens took specific aim at Scalia– an architect of the view that prevailed last week.

The majority decision was penned by Justice Kennedy, of course, yet Citizens United is another example of the success Scalia has enjoyed in recent years on the new Roberts Court. At one point, Justice Stevens wrote, “All of the majority’s theoretical arguments turn on a proposition with undeniable surface appeal but little grounding in evidence or experience, ‘that there is no such thing as too much speech.’” That quote is from Scalia’s dissenting opinion in Austin. Stevens went on to say, “In the real world, we have seen, corporate domination of the airwaves prior to an election may decrease the average listener’s exposure to relevant viewpoints, and it may diminish citizens’ willingness and capacity to participate in the democratic process.” Stevens then said in a footnote of the notion of “no such thing as too much speech”: “Of course, no presiding person in a courtroom, legislature, classroom, polling place, or family dinner would take this hyperbole literally.”

I’m not sure Scalia wouldn’t.

I was also reminded as the Court majority gave short shrift to Congress of something Justice Scalia had said during oral arguments in the case last September and of his overall view of the legislative branch. “Congress has a self-interest,” he told U.S. Solicitor General Elena Kagan. “We are suspicious of congressional action in the First Amendment area precisely because we – at least I – I doubt that one can expect a body of incumbents to draw election restrictions that do not favor incumbents. Now is that excessively cynical of me? I don’t think so.”

Well, maybe. Scalia cut his teeth in Washington in the Nixon and Ford administrations and, in the post-Watergate era, developed an antagonism toward Congress. He was constantly going up to the Hill to testify on behalf of executive privilege and against disclosure of White House documents. He sparred repeatedly with Sen. Edmund Muskie of Maine, U.S. Rep. Otis Pike of New York, and U.S. Rep. Father Robert Drinan of Massachusetts – all Democrats trying to pry information from the executive. I found in my research for American Original that Scalia’s experiences in the 1970s led him to enduringly value executive power and to consider Congress an adversary.

Finally, I’ve been asked for my take on some of the difficulty Justice Stevens’s had when he spoke from the bench last week. As he read excerpts of his dissent, going on for twenty minutes, he stumbled on some words. Tony Mauro wrote in the Legal Times blog that it was “painful” to hear Stevens speak, and Jan Crawford of CBS said she thought she was witnessing a “different” person. For my part, I thought Stevens’s mix of passion and weariness revealed his sense of the changed Court. As he began his remarks he observed that when he and Justice Sandra Day O’Connor jointly wrote a campaign-finance decision in 2003 (McConnell v. Federal Election Commission, rejecting a broad challenge to the McCain-Feingold law and the provision in dispute last week), they had begun with the belief that Congress could restrict corporate spending in elections. As Stevens spoke despairingly, he condemned the reversal of that notion. “The only relevant thing that has changed since Austin and McConnell is the composition of this Court,” he said in his opinion.

I know from my interviews with Justice Stevens that he considered retiring in the late 1980s, after he hit age 65. He stayed on the bench partly because of the role he thought he could play as the Court moved to the right with appointees of Ronald Reagan and the first President Bush. Stevens will be 90 in April. This time around, his options for the long-term are different.