This week saw the launching of the thought provoking book, written by ex Associate Justice John Paul Stevens, entitled “Six Amendments: How and Why We Should Change the Constitution”. Stevens's, who served for 35 years on the nation’s highest court, proposals highlight important political and cultural issues that are in the very center of the current societal debate. His book and the discussion around it also focuses on the role “politics” play in the Supreme Court and how rare it is to find an “independent” thinking Justice. (The latter is called a “swing” vote and does not vote with the “liberal” or “conservative” wing routinely). In addition, Steven’s current public prominence has put the spotlight on the President who appointed him - the late Gerald Ford. Finally, Steven’s slim volume makes evident the massive “political and philosophical” shift to the right that the Supreme Court has undergone in the last decade or so. In so doing it accentuates the immense and unquestioned power the nine in black robes exert on the destiny of the United States of America.
All this forces Jay H. Ell to rethink the Founding Fathers’ touching naive belief that nine individuals, who would be the ultimate arbiters of the Constitution even to the extent of vetoing legislation and making law, could be selected solely on their jurisprudence excellence with no thought to their personal and philosophical approach to the law and life in general. Steven’s in his interviews makes it quite clear that one’s world view and therefore political viewpoints do play a role in one’s jurisprudence, even on the nation’s highest court. Also the justices take into account when they are going to resign as there is anxiety as to might be their replacements.
Again Jay H. Ell wonders what the Founders were thinking, having set up elaborate checks and balances separating the three branches of government, when they entrusted so much power in nine individuals. Especially as they would have life long appointments to be the ultimate arbiters of the law of the land with the wherewithal to reverse Congressional and State legislation.
President Gerald Ford’s Appointment of Stevens
Ford had only one ambition and that was to become Speaker of the House but as a result of a series of scandals he was first appointed as Vice President in place of Spiro Agnew and then President consequent to Nixon’s resignation. Ford had a single appointment to the Supreme Court - John Paul Stevens. Ford did not participate much in the earlier vetting processes for a nominee and only when it was obvious that Robert Bork, the Justice Department’s nominee, could not gain the nomination because of his close affiliation to the disgraced Nixon, did he consider the alternatives. He chose Stevens because of his, concise opinions, the fact that he was a “fine” lawyer” and his ethical reputation.
Ford ultimately opined that he was quite content to have his legacy judged by his one nominee to the Supreme court - Stevens. He amplified on his judgement of Stevens by maintaining that he served the nation without any partisan political bias. No Judge could have a greater endorsement than that. Nor has any President been more generous in his praise of a Justice.
JOHN PAUL STEVENS.
Stevens was appointed first by Richard Nixon to the 7th Circuit of Appeals in 1970 where he was considered a “moderate conservative”. His confirmation to the Supreme Court, in 1975, by the Senate was passed by 98 votes to 0. To this day he considers himself a moderate conservative and it is the Supreme Court that has changed not him.
“Idiosyncratic” and Flexible Judge
His position changed on several issues while he was an Associate Justice. He was often the swing vote in landmark legislation and as such exerted a remarkable influence on the law of the land. The areas were his opinions were changed as a result of the arguments presented to the Court were, notably, in Affirmative Action, the permissibility of obscenity in the public place and capitol punishment. He was considered idiosyncratic but gradually sided more and more with the “liberal” wing of the court.
He was notably more conservative in supporting the Federal Government on interstate commerce and on their then strict marijuana laws for example. (Incidentally, he recently changed his views on the subject. He stated that the weight of evidence pointed to it being not much different from alcohol and society’s views on its legitimacy had swung in favor.) Also he did not see flag burning as a freedom of speech right.
Most memorable opinions.
Stevens will be probably remembered most for his dissenting opinions on two highly publicized controversial decisions of the Rehnquist and Roberts Courts. The former relates to Bush versus Gore where he wrote a scathing dissent. He maintained that the Supreme Court by “handing” the Presidency to Bush damaged the Court’s image in the eyes of the country. The latter concerned the Citizen’s United ruling where according to him the Robert’s court have deemed money more important than the individual voter. The Robert’s authored opinion allowed corporations and individuals to donate any amount of money to Political Action Committees. Stevens also recently criticized the sequel to the latter edict where the Court once again, in the McCutcheon case annulled Congress legislation, as to the amount of money any individual may give directly to candidates in any one election cycle. From a maximum of twenty - three thousand dollars the figure could, according to Justice Kagan, be as much as $23 million.
Six Amendments: “How and Why We Should Change the Constitution”
If this book has not been authored by former Associate Justice Stevens it would have not have found a publisher. It is fanciful at best, not because of its well thought out crisp content, but because of the impossibility of changing the current constitution. (In this current climate, where you cannot get the two political sides to agree on anything other than to adjourn, to expect the two houses to pass anything with a three quarters majority, that a change in the Constitution requires, is a pipe dream. This after getting two thirds of Congress or two- thirds of the States to propose the Constitutional change in the first place.
The Amendments
One of the amendments pertains to the Sovereignty of the State insisting that Congress can mandate States to perform Federal duties in an emergency so as to prevent a national tragedy . Another suggestion relates to the Death Penalty where the Justice’s position evolved over the years to believe that it should be declared unconstitutional. A further proposal relates to the gerrymandering of voter districts by insisting that the constituencies be contiguous. There is a key proposition to limit the money in politics by altering the second amendment, and the final one that has evoked the most discussion thus far. It relates to gun control and the second amendment.
Stevens as so many others believe that the intent of the Founders has been totally distorted by the NRA and the modern day court has gone along with them. He refers to the senseless killings that have occurred as a result of these interpretations. He maintains that the second amendment and the right to bear arms only maintains to the militia in each state not to every citizen in the USA. The underlying argument is that this amendment was framed in the context of the war of Independence not to allow the havoc that has now been unleashed in the streets.
It is interesting to note that two of his other suggested amendments relate to two controversies that are having a profound impact on the forthcoming elections. These are gerrymandering of the voter districts to create “safe’ seats and the role that unlimited money is playing in the electoral process.
All in all not a bad contribution from a 94 year old who also left a profound legacy on the bench. If one sits back and reflects on Steven’s objective it is to evolve the Jeffersonian model of democracy to modern day needs.
THANK YOU 41 AND 43 AND ALL THE REST
The Tea Party instead of haranguing the Bushes, (Presidents 41 and 43), should get down on their knees and thank them for Associate Justices Thomas, Alito and Roberts. Especially for Justice Alito who replaced a true swing vote in Sandra Day O’Conner.
Perhaps Gerald Ford was closer to reality than he imagined, when he made the point, albeit indirectly, that a President’s legacy emanates from those who he appoints to the bench.
Come to think of it there is a disconnect between having been out of office for decades and still having your belief system perpetuated through your judicial appointments. The President is subject to term limits but the final arbiters in society, that he had nominated, can carry on for life. The current Chief Justice, who has the Dickensonian belief that the more money you have the more free speech you are entitled to, could well be in that position for another forty years. He is supported in his quaint notion of democracy by the 78 year old Antonio Scalia who has been on the bench for 30 years, 77 year old Anthony Kennedy who was appointed 26 years ago, 65 year old Clarence Thomas who was elevated to the Court 23 years ago and the most recent nominee 64 year old Samuel Alito who has been an Associate Justice for 8 years.
Jay H. Ell predicts that the Supreme Court is going to involved in many controversial societal issues in the next few years and will become more and more in the public limelight.
Maybe Associate Justice Stevens should have proposed an additional amendment - term limits for Supreme Court Judges.
Just as an aside the thought of Hilary having an 8 year go at picking Judges is at least part of the reason that the Koch brothers and their Kochcracy are spending 100’s of millions of dollars in the mid term elections to prepare the way for her defeat in 2016. Even the Kochs know that Scalia and Kennedy may not live forever.
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