A Quiet Giant

Ever heard of a guy named William Johnson? How about Ward Hunt? Do the names Frank Murphy, Tom Clark, Stanley Matthews, Samuel Nelson, William Strong, Joseph Bradley, John Catron, David Brewer, Edward White or Horace Lurton ring a bell?

Unless you’re a legal scholar or historian, those names are almost certainly not going to be familiar to you. Those men were all Supreme Court Justices at one time or another, and though the decisions they rendered live on within our judicial system, they themselves have been largely forgotten by history.

Press play to listen to author William Rivers Pitt read his column, ” A Quiet Giant”:

Press play to listen to author William Rivers Pitt read his column, ” A Quiet Giant”:

Of the 111 people who have served on the high court since its inception, only a relatively small handful are still remembered today.

Those names, of course, are far more familiar. Taney, Chase, Holmes Jr., Brandeis, Cardozo, Black, Frankfurter, Douglas, Warren, Brennan, Stuart, Marshall, Burger, Blackmun – these were the ones who changed the course and nature of this nation from the bench.

It is a sad truth that a great many Americans don’t know who these people were – after all, it is an even sadder truth that most people don’t know the names of the Justices serving at present – but the lives of every living American have been touched, in one way or another, by the decisions rendered by those individuals, and by the 96 others who have likewise served on the court.

Well, that number is about to go to 112. Justice John Paul Stevens, appointed by President Ford in 1975, has announced he will retire this summer.

Predictably, all hell will be breaking loose in short order as everyone in Washington is going to battle stations. President Obama has to pick a successor, Senate Democrats are going to have to navigate another confirmation process, and to nobody’s surprise, the GOP is going to go absolutely bat-poop crazy to thwart and upend the process.

The TV news networks are rejoicing at Stevens’ retirement, because they more than anyone else love a good rhubarb. Coverage of this is going to focus largely on who the newest nominee will be, what the lay of the land in the Senate is, and what manner of deranged accusations will be leveled at Obama and his nominee by congressional Republicans, the right-wing media, and the bevy of presidential wanna-bes like Palin and Romney who are scurrying around the countryside attending Tea Party rallies trying to gin up support for their erstwhile campaigns.

A Supreme Court nomination and confirmation is a big, fat, juicy target, and you can bet the entire GOP will be taking some big swings.

That’s all well and good, but before we turn our attention to what’s coming, we must pause a moment to contemplate the man who has initiated this situation. John Paul Stevens was, very quietly, a giant on the court, and like his famous colleagues, he deserves to be remembered far after he finally steps down.

The New York Times on Friday described him thusly:

A soft-spoken Republican and former antitrust lawyer from Chicago, Justice Stevens has led liberals on a court that has become increasingly conservative. He was appointed by President Gerald Ford in December 1975 to succeed Justice William O. Douglas, who had retired the month before. He is the longest-serving current justice by more than a decade.

He joined the court when it included Thurgood Marshall and William J. Brennan Jr., who along with Justice Douglas had been liberal stalwarts of the Warren court era. Also serving were Lewis F. Powell Jr., a Nixon appointee who voted with the court’s conservatives on criminal justice issues but was a strong supporter of abortion rights, and Potter Stewart, the last of President Dwight D. Eisenhower’s four Supreme Court appointees, who, like Justice Stevens, was a moderate Republican from the Midwest.

For most of his first two decades on the court, Justice Stevens labored in the shadows of those large figures, and was known to the public, if at all, mainly for the jaunty bow ties that were his sartorial trademark. After 1994, though, when the retirement of Justice Harry A. Blackmun made Justice Stevens the court’s senior associate, the language of his dissents started to become noticeably sharper, with a theme running through them: that the Supreme Court had lost touch with fundamental notions of fair play.

Confronted with a court far more conservative than the one he joined, Justice Stevens showed the world what his colleagues already knew: that beneath his amiable manner lay a canny strategist and master tactician, qualities he used to win victories that by a simple liberal-conservative head count would appear to be impossible. A frequent dissenter even in his early years on the court, he now wrote more blunt and passionate opinions, explaining on several occasions that the nation was best served by an open airing of disagreements.

What is perhaps most remarkable about Justice Stevens is the fact that he was a Republican, was nominated by a Republican president, but over time became the most liberal voice on the court. His opinions on abortion, gay rights and affirmative action made a lot of right-wing heads explode over the years, to be sure, and that can be almost entirely be chalked up to the fact that, in the second half of his tenure, the court began filling up with the kind of conservative thinkers who turn Republicans into Democrats.

Confronted by the likes of Renquist, Scalia and Thomas, Justice Stevens tacked steadily to the left and away from the party that nominated him in the first place.

Justice Stevens left his most significant mark with two documents, one a decision and the other a dissent. In Hamdan v. Rumsfeld (2006), Stevens declared the opinion of the court that military commissions set up by the Bush administration to hold tribunals for detainees at Guantanamo Bay violated the Uniform Code of Military Justice and the Geneva Convention, and therefore could not proceed.

This was the first significant blow against the manner in which the Bush administration was pursuing its so-called War on Terror, and against the Unitary Executive Theory, which defined their my-way-or-the-highway approach to policy. This decision is likely to be used by other detainees who bring legal actions regarding their treatment and detention.

The other document, a dissent, was nothing less than a thunderclap, perhaps the most significant dissent of the last 50 years.

In Bush v. Gore (2000), the court leaned on a wildly dubious Equal Protection argument to decide the 2000 presidential election in favor of George W. Bush. The dissent penned by Justice Stevens was as scathing, and as accurate, as anything ever rendered by the high court. It read, in part:

Finally, neither in this case, nor in its earlier opinion in Palm Beach County Canvassing Bd. v. Harris, 2000 WL 1725434 (Fla., Nov. 21, 2000), did the Florida Supreme Court make any substantive change in Florida electoral law. Its decisions were rooted in long-established precedent and were consistent with the relevant statutory provisions, taken as a whole. It did what courts do – it decided the case before it in light of the legislature’s intent to leave no legally cast vote uncounted. In so doing, it relied on the sufficiency of the general “intent of the voter” standard articulated by the state legislature, coupled with a procedure for ultimate review by an impartial judge, to resolve the concern about disparate evaluations of contested ballots. If we assume – as I do – that the members of that court and the judges who would have carried out its mandate are impartial, its decision does not even raise a colorable federal question.

What must underlie petitioners’ entire federal assault on the Florida election procedures is an unstated lack of confidence in the impartiality and capacity of the state judges who would make the critical decisions if the vote count were to proceed. Otherwise, their position is wholly without merit. The endorsement of that position by the majority of this Court can only lend credence to the most cynical appraisal of the work of judges throughout the land. It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. Time will one day heal the wound to that confidence that will be inflicted by today’s decision. One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.

If nothing else, history will remember Justice Stevens for these words. Had his voice been the majority opinion, as it should have been, we would all have been spared a decade of horror, loss, bloodshed and wanton executive criminality. It’s pretty much just exactly that simple.

You were right, Mr. Justice. Thank you for your service, and Godspeed. You will be missed.