The Cat That Walked by Himself

By John Hertz: (reprinted from No Direction Home 39)  John Paul Stevens (1920-2019) was the 101st Justice (as we call judges there) appointed to the United States Supreme Court (served 1975-2010), taking the seat vacated by the retirement of William O. Douglas (1898-1980; served 1939-1975).  Justice Stevens was appointed by President Ford; Justice Douglas had been appointed by President F.D. Roosevelt.

Upon retiring, Justice Stevens wrote Five Chiefs (2011), a memoir of the Chief Justices he had served under.  A fuller memoir The Making of a Justice (2019) appeared two months before his death.  Only Douglas and Justice Stephen J. Field (1816-1899; served 1863-1897, appointed by President Lincoln) were longer on the Court.

Justice Stevens and I both went to the University of Chicago Laboratory School and Northwestern U. law school.  He was and I am a Chicago Cubs baseball fan.  At Northwestern, he and I had the same professor for Antitrust law, James A. Rahl (1917-1994).

It’s been said that a man who wears a bow tie is a joker.  On the strength of my grandfather, of one of my brilliant first-year law school professors, and of Justice Stevens, it may be true.  The Making of a Justice is full of jokes, many dry, some wry.

I was a few feet from him at a law-school reception when he muttered to another of my brilliant professors – who didn’t wear bow ties, but always wore a gray three-piece suit, white shirt, black knitted four-in-hand; not until watching him closely in a second class I carefully took with him did I see from slightly differing lapels, or buttons, or tie weave, that he had several – “I never had the Latin for the judgin’”.

The only time The Making shocked me was a manifest set-up.  The title itself is a joke; how can it cover Stevens’ entire life and not merely the years 1920-1975? but he was famous for saying learning on the job was essential to judging (e.g. his 2006 article “Learning on the Job” [based on a 2005 speech], Fordham U. Law Review, vol. 74, beginning at p. 1561).

The consummation devoutly to be wished is that judges, most of all – supremely – on the Supreme Court, will study the law, study the facts of the case before them, and decide how the law applies to the case and with what result.  In the words of Gelett Burgess’ poet (“The Protest of the Illiterate”, 1897), that’s hard as the deuce; we can have panels of three judges, or seven, and on the U.S. Supreme Court are nine.

What can happen, what we hope will not happen, and what the mass news media and, it seems, many politicians insist always does happen, is that judges unconsciously or otherwise bend toward their existing opinions – alas, their prejudices – and reach results accordingly.  A Spanish proverb says Every man pushes his own sardine closer to the fire.  So we worry about liberal and conservative judges, if wisely then unfortunately.

To the extent that is real and not false wisdom I think the Supreme Court should have two thoughtful articulate liberals, two thoughtful articulate conservatives, and the rest moderates.  Thus various views will be expressed, and if I may quote Justice William J. Brennan, Jr. (1906-1997; served 1956-1990, appointed by President Eisenhower), praised, when he is (literary present tense), as a thoughtful articulate liberal, It takes five votes to get anything done around here.

Law and politics are neighbors.  Supreme Court justices, who are not elected, are nominated by a President and confirmed by a Senate who are.  It is tempting, and some would say rightful, for the President and the Senate (where the President may not have a sympathetic majority) to try moving the Court in a favored direction.  Even so that does not always eventuate.

Justice Stevens, nominated by a President who was a moderate Republican, appeared to be a moderate Republican.  By his retirement liberals were boasting of him.  But he always said he was a conservative, and as time went on, he said the Court, not he, had shifted.

He had sometimes been called “even Stevens” for delivering both opinions conservatives liked and opinions liberals liked.  At his death both Chief Justice John G. Roberts, Jr. (born 1955; serving since 2005, appointed by President G.W. Bush), a conservative, and Justice Elena Kagan (b. 1960; appointed by President Obama to succeed Justice Stevens), a liberal, praised him for kindness, humility, and independence; Justice Kagan said he was fiercely independent.

She also called him a model of collegiality (which another of my brilliant law professors always deliberately pronounced “colleague-iality”).  That shows in both Five Chiefs and The Making of a Justice.

He many times wrote the opinion of the Court, many times a concurring opinion to record why he could not wholly agree, many times an opinion in dissent.  I’ll record one dissent of mine; to keep this note from being technical, not on a legal point – and I concur in his result.

Judging a moot-court competition which argued whether the actor Shakespeare (1564-1616) had actually written the plays under that name, he held that the challenger had not brought evidence enough to overturn the prevailing view in favor of the actor, but “confessed to having some doubt….  the striking difference between the spelling … of his … actual signatures and the name ‘Shakespeare’”, adding in his memoir that, when visiting the Shakespeare home in Stratford-upon-Avon later in the year, he “found no evidence whatsoever that the house ever contained a library.  The man who wrote those plays must have owned some books,” Making pp. 235-36.

In his legal opinions Justice Stevens insisted on understanding the facts.  Here in my own view he was alas ill-informed of contemporary spelling in written English, of what actors like Shakespeare had in ready memory, of the notorious errors indicating the playwright had not consulted books, and of the cost and availability of books then.

But in 2005 Gerald Ford said “I am prepared to allow history’s judgment of my term in office to rest (if necessary, exclusively) on my nomination thirty years ago of Justice John Paul Stevens to the U.S. Supreme Court….  He has served with dignity, intellect, and without partisan political concerns,” Making pp. 527-28.  R.I.P.

Laboratory schools: some universities and other institutions engaged in teacher education maintain these to train teachers, further educational research and experimentation, and like that.  Antitrust law: so called in the U.S. because at the turn of the 20th Century businesses perceived to exercise oppressive economic power acted by using, or abusing, the form of legal entity known as a trust, one person (which need not be a natural person, could be a corporation) holding property for others’ benefit; thus e.g. the 1914 Sherman Antitrust Act.  “Never had the Latin for the judgin’”: P. Cook as E.L. Wisty (1960), see his Tragically I Was an Only Twin pp. 43-45 (2002).  Moot court: a mock trial or arbitration examining a hypothetical case as an academic exercise.

1 thought on “The Cat That Walked by Himself

  1. The analyses I’ve read of some of the history plays indicated that Shakespeare at least read Hollinshed(sp?) (although some things he used, such as Henry V’s anonymous tour the night before Agincourt, are not in H); the issue may have been not whether he read books but their quality.

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