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Post Death of Justice John Paul Stevens
Created by John Eipper on 07/23/19 3:20 AM

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Death of Justice John Paul Stevens (David Duggan, USA, 07/23/19 3:20 am)

I'm going to veer off my normal lanes of sports, politics, and religion into the realm of constitutional theory in light of the death last week of the Hon. John Paul Stevens, at 99.

The oldest person (at death) ever to have sat on the Supreme Court (beating out Oliver Wendell Holmes who died two days short of his 94th birthday, and Stanley Reed, who died at 95; Reed was the justice who resigned immediately after the Court decided Brown v. Board of Education Topeka KS holding that "separate but equal" public school educational facilities were inherently unequal; his resignation was the price of Chief Justice Earl Warren's demand for unanimity in the decision), Stevens is also the oldest one-time constitutional officer of the United States (eclipsing John Nance "Cactus Jack" Garner, FDR's first vice-president who died 15 days short of his 99th birthday; for whatever it is worth, Jimmy Carter recently became the oldest ex-president in history, earlier this year outlasting George Herbert Walker Bush). Stevens is also one of the few justices to be known by his three names (Holmes, Sandra Day O'Connor, and John Marshall Harlan). What does it say that a justice needs three names to be identified?

In 1975, Stevens was plucked from the obscurity of the federal appellate bench in Chicago (referred to as the 7th Circuit) to occupy the seat of William O. Douglas, who after years of senility finally retired to give Gerald Ford his only appointment to the Supremes. Richard Nixon, who was pretty good with his appointments to the inferior courts (Harry Blackmun notwithstanding), had appointed Stevens to the 7th Cir. as his first appointee to that bench where he joined Otto Kerner II, former governor of Illinois, author of the "Kerner Commission" report that the United States was two nations, one black and the other white, and future federal jailbird for having received racetrack stock while governor for giving favorable racing dates. This was back in the day before "law and order" became a TV franchise and when "strict construction" meant something other than that your walls were plumb and your floors level. Keeping the home team at bat, Ford's Attorney General Ed Levi, the former president of the University of Chicago, dean of its law school, went to Stevens, a ‘41 alum of its undergraduate school and fellow bow-tie wearer, before Stevens veered off course to Northwestern's Law School (and before it sold out to the Pritzkers), graduating in 1947.

Stevens is one of those guys who lived a charmed life, always seeming to be in the right place at the right time. His family had a ton of money, and was responsible for building the Stevens Hotel, later the Conrad Hilton on S. Michigan Ave., at one time the largest hotel in the world. A sculpture there shows a young Stevens au naturel as a winged cherub riding a fish. At 12, he claims to have seen Babe Ruth hit his "called shot" home run in the 1932 World Series, when Ruth supposedly pointed his bat at Wrigley Field's center field scoreboard and promptly dumped the next pitch into the bleachers. Serving in Naval Intel during World War II, Stevens helped break the Japanese code, which allowed the US to shoot down Adm. Yamamoto, architect of the raid on Pearl Harbor, over Bouganville Island in April 1943. He was motivated to go to law school in part because his father had been convicted of embezzlement during the Depression, though the conviction was reversed. As a young lawyer, Stevens clerked for Supreme Court justice Wiley Rutledge and worked with the House Judiciary Committee investigating baseball's antitrust exemption (created by Justice Holmes). The exemption remained (and remains) unchanged. In private practice, Stevens was known for his plaintiff's antitrust work and during one trial, his adversary said that lawyers who wore clip-on bow ties couldn't be trusted. In his rebuttal before the jury, Stevens unfurled his bow tie and retied it without a mirror. Nice trick, and needless to say he won the case. Shortly before being named to the 7th Circuit, Stevens was the "special prosecutor" of a commission created to investigate allegations of corruption by two Illinois Supreme Court justices (hey, it was the ‘60s). Though lacking law enforcement capacity, the commission's findings led to the justices' resignation. He remained a life-long skeptic of the honesty of the Illinois judicial system, at one point voiding Cook County's system of electing judges by county-wide ballot, which had the effect of disenfranchising minorities.

For a number of years Stevens owned several distinctions on the Court: the only justice to be divorced while then sitting (aping his predecessor Douglas), the only justice not to have graduated from Yale, Harvard or Stanford law schools, the last Protestant justice (Gorsuch hasn't swum the Thames to embrace the Anglican faith to which he was introduced at Oxford), and the only justice to have had a significant career in private practice. After Blackmun's 1994 resignation, he was the senior associate justice, presiding over the Court in the Chief's absence or incapacity, and if he was in the majority and the Chief in the minority, he doled out the opinion writing assignments. He was also the only private pilot to have sat on the Supremes. Though initially termed a conservative when William Brennan and Thurgood Marshall were there, and 10 years before Rehnquist became Chief and Scalia was confirmed, his death has caused the mainstream media to lament the loss of the leader of the Court's liberal wing. But he was its leader only because of his 34.5 year longevity (3rd longest in Court history behind Douglas and Stephen Johnson Field of the 19th century). When Stevens was appointed, his patron Ed Levi disputed that there were "conservative" or "liberal" judges. There are only good and bad judges, he said. Known for his breezy writing style, Stevens probably authored more concurring opinions than anyone in history, largely because he couldn't accept what the majority was saying.

Certainly Stevens changed while in office, and whether this is because of life-time tenure and a non-diminishable salary or simply because he didn't like the results that Rehnquist, Scalia, Thomas, Roberts, and Alito were reaching is open to question. He claims to have "grown on the job," but to me that sounds too much like making it up while you go. He dissented from the result in Bush v. Gore, and also in the most important case of this millennium, District of Columbia v. Heller, which upheld an individual's right to keep and bear arms (later made applicable to the states in McDonald v. Chicago). Since retirement he has been on the talk-show trail advocating for a change in the 2d Amendment. Unlike most appointees, he did not resign during the presidency of a member of the party which appointed him, waiting for Bush II to term-limit out before tendering his resignation to Obama in 2010. Five years later, Obama rewarded him by giving him the Presidential Medal of Freedom (though not with the "distinction"--whatever that means--that Obama gave his veep and chief toady Biden).

Scholars will be debating for decades the effect that Stevens had on the Court and constitutional jurisprudence. During his lifetime, Stevens was sometimes compared to the "philosopher king" of Plato's Republic, but for now, RIP John Paul Stevens.

JE comments:  An excellent (and balanced) tribute from fellow Illinois native and JD, David Duggan.  Stevens bucked the tendency of most people to grow more conservative as they age--or did the rest of the Court just veer strongly to the right?  Is there still such a thing as a liberal Republican?

Next time I'm in Chicago, I'll have to see that cherub for myself.

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  • A Gift for Justice Stevens (Patrick Mears, Germany 07/24/19 3:55 AM)

    David Duggan's recent post on the passing of former Supreme Court Justice John Paul Stevens brought back a fond memory of Justice Stevens from September 29, 2011, when he visited Grand Rapids, Michigan to give the William E. Simon Lecture sponsored by the Gerald R. Ford Presidential Foundation.

    At the time, I was one of the founding trustees of The Historical Society of the United States District Court for the Western District of Michigan and the first Editor of the Society's journal, entitled The Stereoscope. A few months before Justice Stevens' speech on September 29th, we at the Society had been advised that our organization (along with a number of others) were invited to submit proposals for presentations to be made to Justice Stevens in advance of his speech and so we addressed this matter at our next trustees' meeting.

    We trustees unanimously agreed to offer to make such a presentation, but we were uncertain as to what we could present to someone like Justice Stevens, so as to make a favorable impression on him and the anticipated large audience. Some proposals to offer him something connected with the Supreme Court or the law in general, were discussed, but these did not generate much enthusiasm. Then I fortunately remembered what David mentions in his recent post--that Stevens had witnessed Babe Ruth's "called shot" in Game 3 of the 1932 Yankees-Cubs World Series at Wrigley Field. In that game, the Cub bench had been mercilessly riding the Sultan of Swat, calling him "fat," "over-the-hill" along with nastier and unprintable remarks. For their part, the Yankees were seething at the decision by the Cubs players made just before the Series began not to award their former teammate, Mark Koenig, a full-player's share of the Cubs' Series gate receipts. Baseball lore has it that the Cubs' pitcher, Charley Root, began to shout obscene remarks at Ruth when he stepped up to the plate in the fifth inning. Root pitched two quick strikes to Ruth and, just prior to the next pitch, the Bambino pointed with his bat to Wrigley's center-field bleachers and promptly slammed the ball over the head of the Cubs' center fielder, Johnny Moore, for a home run. The Yankees won that game and the next, sweeping the Cubs four games to zero.

    While sitting in our meeting listening to this discussion about what to offer Justice Stevens, I remembered that I had at home the autographs of Mark Koenig, Charley Root and Johnny Moore, which I had collected by writing to these former players as a youngster in the early 1960s. I then made the proposal to my fellow trustees that we could offer a unique gift to Justice Stevens--a glass-framed collage containing these autographs, reproductions of baseball cards of Koenig, Ruth, et al. from the early 1930s that I also possessed, copies of contemporary newspaper articles reporting on this game, and a few other Cubs' nicknacks that I had collected from watching Cubs' games at Wrigley over the years and also at the first "Cubs Convention" held in downtown Chicago between baseball seasons. My suggestion was quickly and enthusiastically adopted, and I took the next step of gathering these items together and delivering them to a local art dealer, who arranged and displayed them within the glass frame with great style. Then, I delivered the final product to the Gerald R. Ford Foundation for their consideration and also that of Justice Stevens.

    A few days before Justice Stevens' speech, we received notice that our honored guest had approved our proposed gift and that we were the only organization to be selected. So on the day of the speech, two of my fellow trustees and I attended this event and, right on cue, we were asked to come up to the podium and present our offering. Justice Stevens was extremely gracious and very pleased to have received "something out of the ordinary" and we pointed out to him the various items in the framed collage and described how the idea of the presentation came to us. The following is a link to the issue of the Stereoscope that contains a brief story about this event along with photographs of the presentation itself.


    JE comments:  Scroll down to p. 20 of the Stereoscope for the Stevens article, including photos of our own Pat Mears with the justice (bow-tied even in retirement).  A brilliant gift, Pat!  I assume JPS was a life-long Cubs fan.  He lived a charmed life, as David Duggan wrote, and here's one additional blessing: His Honor lived long enough to see the Cubs' 2016 championship, after a (very long) lifetime of frustration.

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