Archive for the ‘Supreme Court’ Category

Corporate Privacy

March 1, 2011

In the last two days, three remarkable things – in my life, anyway – have occurred. Justice Scalia has written two straight opinions with which I agree and Justice Roberts has made me laugh. Normally, of course, I don’t trouble you with my personal reactions to judicial opinions; they are what they are and when one piques my interest, my job is to explain it as best I can.

Both of the opinions by Justice Scalia require a longer post than I have time for today. The chuckle from Justice Roberts came in the Court’s opinion today holding that corporations – however much they get preferential treatment as real people – do not get treated as real persons with a right to “personal privacy” under Freedom of Information Act (FOIA) requests. The corporation in the case, AT&T, argued that it was entitled to personal privacy. Here is the last paragraph of Justice Robert’s opinion for the Court.

We reject the argument that because “person” is defined for purposes of FOIA to include a corporation, the phrase“personal privacy” in Exemption 7(C) reaches corporations as well. The protection in FOIA against disclosure of law 12 FCC v. AT&T INC. enforcement information on the ground that it would constitute an unwarranted invasion of personal privacy does not extend to corporations. We trust that AT&T will not take it personally.

The judgment of the Court of Appeals is reversed.

It is so ordered.


The Record

December 27, 2010

Nothing is more sacrosanct to trial lawyers and judges than “The Record.” Walk into any courtroom during a trial and one of the first things you’ll notice is the person sitting in front of the bench, hands moving feverishly on a small key board. That is the court reporter whose job it is to keep an accurate record of every word said during the trial. Coupled with all the paper that gets into the court file before and during the trial, it constitutes “The Record” of that case. The lawyers you see in that courtroom may look and act like they are engaging in an oral trial, but they are constantly thinking of The Record. To paraphrase General MacArthur, the last conscious thought of a trial lawyer before dying, “will be of The Record, and The Record, and The Record.”

Said differently, the facts of any case are decided at trial. Thereafter, the only legitimate issues in appeals are what rules of law to apply to those facts or how to apply a rule of decision to those facts.

And, if the case is appealed, nothing outside The Record can be considered by any appellate court. If it isn’t in the record, it doesn’t exist.

Think of it as a prison, jailing all the lawyers and all the judges for the rest of the case. No one may escape the prison walls of The Record.

I chose the “prison walls” metaphor to describe the importance and the role of The Record deliberately because of something astonishing that happened in the United States Supreme Court last month during oral argument of a prison case.

San Quentin

The case was Schwarzenegger v. Plata, the California prison case. The Eighth Amendment to the Constitution prohibits “cruel and unusual punishments.” California has about twice the number of inmates in its prisons than its prisons are designed to hold. In a lawsuit brought by prisoners, the state admits it is violating that constitutional rights of its inmates by housing so many prisoners in such crowded conditions. The state admitted, in The Record, its violation. The federal trial court decided, as a matter of fact, that conditions in California’s prisons are awful; so bad, in fact, that prisoners’ rights are systematically violated every day.

The only issue in the case is what to do about that wholesale, massive violation of constitutional rights.

Doing its legislative job, Congress passed a law reforming how federal courts handle prison litigation. Congress gave to the federal courts a “last resort” option of ordering a state to release prisoners before their jail time is up, if all other overcrowding remedies have failed. Doing his executive job, the President of the United States signed the law. Doing their judicial job, a special three-judge federal court in California, ordered California to release about 35,000 prisoners over the next two years to relieve the overcrowding. It was the “last resort” Congress ordered to stop constitutionally prohibited cruel and unusual punishments. (The lawsuit is already twenty years old.)

The state appealed that order, arguing that it is too early to invoke the last resort remedy of release.

Folsom State Prison

Remember first, there is not the slightest disagreement that the state has violated prisoners’ rights. Here is the state’s Supreme Court lawyer on the point, nobody doubts for a moment that there have been very significant violations of constitutional rights years gone by . . .) (Tr. p-22)

The three-judge federal court, after trial and based upon the evidence at trial, found – as a matter of fact – that California could release or transfer up to 40,000 prisoners with no impact on public safety. Even the state itself agrees that it could release that many if it had five years to do it, rather than the court-imposed two years. Here again is the state’s own lawyer,

JUSTICE KAGAN: Mr. Phillips, sorry, but on a — on a different subject. Does the State stand by its representation that it can do this without any public safety impact in 5 years?

MR. PHILLIPS: Yes. I mean, we made that submission to the court, and we — we believe that we could comply with it.” (Tr. p-77)

Moreover, all the experts who testified at the trial, including the state’s experts agreed that releasing or transferring that many prisoners would not affect public safety. (After all, the state isn’t going to release convicted murderers, rapists, and bank-robbers; it’s going to release old prisoners, technical probation violators, and smokers of marijuana.)

To conclude: The Record – set in stone and from which there is no legal escape – contained no evidence that public safety would be harmed. The justices of the Supreme Court are duty-bound to honor that record and the factual finding of the lower court. There will be no public safety impact if the lower court’s decision is affirmed on appeal. None. As a matter of law.

President Bush and Justice Alito

So what was astonishing during the oral argument of this case? One of the Justices seemed either unaware of the fundamental legal rule or just didn’t care.  Here is Justice Sam Alito,

This is going to have — it seems likely this is going to have an effect on public safety. And the experts can testify to whatever they want, but you know what? If this order goes into effect, we will see. . . . We will see, and the people of California will see: Are there more crimes or are there not?

The Justice was convinced that a release order in Pennsylvania had resulted in an increase in murder in that state. Never mind that no such evidence was in The Record in the case he was judging. Never mind that all the experts who were in the record agreed that no release order has ever increased the crime rate. Never mind that fifty pages of the trial court’s order in the California case was directed specifically at that issue and concluded, based upon all the expert testimony, found as a matter of fact that no public safety impact will result.

Sam Alito doesn’t care,

JUSTICE ALITO: That’s a very indirect way of addressing the problem, and it has collateral consequences. If — if I were a citizen of California, I would be concerned about the release of 40,000 prisoners. And I don’t care what you term it, a prison release order or whatever the –

MR. SPECTER: Crowding –

JUSTICE ALITO: — terminology you used was. If 40,000 prisoners are going to be released, do you really believe that if you were to come back here 2 years after that, you would be able to say they haven’t — they haven’t contributed to an increase in crime. . . .

Those are the questions and comments of a true judicial activist.

In contra-point, here is a comment from the same oral argument from a justice who is not an activist,

Justice Kagan : Mr. Phillips, my trouble listening to you is that it seems as though you’re asking us to re-find facts. You know, you have these judges who have been involved in these cases since the beginning, for 20 years in the Plata case, who thought: We’ve done everything we can, the receiver has done everything he can; this just isn’t going anywhere and it won’t go anywhere until we can address this root cause of the problem.

And that was the view of the judges who had been closest to the cases from the beginning and the view of the three-judge court generally. So how can we reach a result essentially without, you know, re-finding the facts that they’ve been dealing with for 20 years?

Not a problem for Sam Alito. He knows better.

Lessons for Young People from Justice Thomas

October 25, 2010

Today was the day to opine about the latest punditry regarding the upcoming election, but Clarence Thomas keeps getting in the way. I wrote last week about the latest Thomas kerfuffle, his wife’s latest ill-advised foray into the sexual minefield of his past.

On one level Justice Thomas’s past sexual desires and his career are unimportant. He’s not likely to make any lasting contribution to American history nor is he likely to do any irretrievable damage, he’s too far outside the mainstream of legal history to make much of a long-term impact. Like his brother Scalia, he’s historically irrelevant.

But Thomas’s sexual career highlights two social and cultural trends at work in American life. First is the easy availability of free porn, right at your desk. When Thomas started out, if a man wanted to watch Long Dong Silver films he had to suffer the indignity of sneaking into a grungy movie theatre and sitting in the dark with other men, some of whom probably were making strange noises. A prominent man, an ambitious man, had to take some career risks to do that. Now, pornography is a computer click away.

And, if he doesn’t know what web site to turn to, even the New York Times has articles that will tell him.

On those web sites he will find a pornucopia of young people pounding away. He can watch hours, days for free. Apparently pornographers don’t worry much about copyright laws, or at least the aggregators of porn don’t. Perhaps one day a pornographer will sue one of the aggregators for copyright infringement and Justice Thomas can vote to return us to the old days of dirty theaters. Until then we can watch on our computers studly young men pumping away in ten minute film clips, in four or five basic positions, withdrawing for the apparently obligatory ejaculation photo. And we’ll see women pretending – unconvincingly – to enjoy all that friction.

Young friends, if you want to see a female orgasm accurately depicted on film, watch the restaurant scene in “When Harry Met Sally.” It’s much better than anything you’ll see in pornography. Besides, you’ll learn what to order from the menu at Katz’s Delicatessen.

Better yet, read chapter 12 of Lady Chatterly’s Lover. And, while you mustn’t underrate friction’s role in sexual fulfillment, you shouldn’t overlook the importance of eroticism either. There’s a reason that Lady Chatterly and Mellors don’t make love until chapter 10. Sexual tension is better after it has built for a while.

For those of you who have not yet dipped into this new ocean of free modern pornography, don’t bother. Women remain objects of desire; not people with desires, and men are depicted as pistons. It’s all pretty boring.

And don’t use it for masturbation either.

Emmeline Pankhurst

The more important trend that Justice Thomas’s career spans and one to which he contributed inadvertently, concerns women’s rights in the workplace. Those have improved some in the nineteen years since Thomas’s confirmation hearings in the U.S. Senate.

On the day that Anita Hill testified before Congress that Thomas sexually harassed her, I was trying a lawsuit in which a woman who had complained about similar conduct by her male boss had been fired for complaining. Just twenty years ago, employers’ standard response to a woman who dared complain was to fire her. That is much less likely today, although many women who do complain face only slightly more subtle punitive responses. Moreover, most employers, are more likely to take her seriously, in part because they know they are going to get sued if they don’t.

Ironically, the accumulation of evidence that Clarence Thomas, at one point in his life, was a boorish lout who lied his way onto the Supreme Court nudged that process along. And, while women are a long way from truly equal treatment at work or in society, we’re a little further down the road as a result.

Mrs. Justice Thomas and Anita Hill

October 20, 2010

Wisely, it is said, “No man is a hero to his wife.” Judging from the recent news that Justice Thomas’s wife called Anita Hill last week, demanding an apology from Hill for accusing Justice Thomas of sexual harassment, what we should say is, “No man is a hero to a wise wife.”


Out Goes Desdemona's Olympian Fire (Delacroix Painting)


I have noted in this space before that I am convinced to an abiding certainty that Anita Hill told the truth about Thomas and that he lied to get on the Supreme Court. My conclusion is based on a career spent representing the victims of sexual harassment and a private hour I once spent with one of my clients and Professor Hill. I am far from alone in that conclusion. For another analysis of the evidence, see this column.

Based on that conviction, I would have advised Mrs. Thomas to leave it alone. It happened almost two decades ago,  Clarence Thomas has been on the Supreme Court for a long time and Professor Hill has made a successful career for herself. So, it is passing strange that Virginia Thomas would call Professor Hill last week – at 7:30AM – and leave a telephone message suggesting that Professor Hill pray and then apologize to Justice Thomas.

Strange.  And weird.

Literature, that mirror to reality, abounds with examples of wives who overestimated their husbands. Think of Desdemona who trusted Othello far more than she should have. Or Hamlet’s mother Gertrude. She admired husband number 2 far more than was wise. Real life examples spring to mind as well. Two of Henry VIII’s wives, Anne Boleyn and Catherine Howard, literally lost their heads trusting him.


Anne Boleyn


Mrs. Thomas hasn’t asked for my opinion and wouldn’t accept it anyway, but her husband’s sexual history might be a sleeping dog better left un-kicked. Why would the spouse of a sitting Supreme Court justice bring up that embarrassing past now? One can’t help but think that Justice Thomas wishes she had not made that call. Not that he will ever admit in this life that he lied. He has far too much invested in that lie to tell the truth now. Among other things, his wife might just kill him if he did.

And Mrs. Thomas would do well to heed Hamlet’s description of men to Ophelia, “We are arrant knaves all, believe none of us.

First Monday in October – Three Days Late

October 7, 2010


They’re back and, as usual, the return to active duty of the United States Supreme Court reminds me of the first paragraphs of Dickens’ Bleak House.

“. . . Implacable November weather. As much mud in the streets, as if the waters had but newly retired from the face of the earth . . .Fog everywhere. Fog up the river, amoung green aits and meadows; fog down the river . . . The raw afternoon is the rawest, and the dense fog is densest, and the muddy streets are muddiest near that leaden-headed old obstruction, appropriate ornament for the threshold of a leaden-headed old corporation: Temple Bar. And hard by Temple Bar, in Lincoln’s Inn Hall, at the very heart of the fog, sits the Lord High Chancellor in his High Court of Chancery.

Never can there come fog too thick, never can there come mud and mire too deep, to assort with the groping and floundering condition with which this High Court of Chancery, most pestilent of hoary sinners, holds, this day, in the sight of heaven and earth.”

Just change the month and the name of the court and you get a feel for the sense of dread that begins each year at this time as the United States Supreme Court gets ready to do the corporations’ business.

But, first up, this year is the First Amendment and even the Roberts Court is hesitant to mess with that. And, as common with First Amendment cases, the speech at issue was odious. The little, tiny, Phelps “church” of Topeka, Kansas, the members of which appear to consist of exactly one extended family, arranged for seven of the family to protest at the funeral of a Marine killed in Iraq. He was killed, according to these alleged Christians, because the United States is soft on homosexuality.

If that makes no sense to you, you are sane.

Anyway, the father of the dead Marine, Albert Snyder,  sued the Phelps family church for intentional infliction of emotional distress, a tort that requires outrageous conduct. The “church” members had picketed his son’s funeral carrying obnoxious signs and later posted on their website an “epic” which accused the Snyders of raising their son “for the devil.” Keep in mind that their son was not homosexual, but because we’re soft on gays in this country, the Snyders were in league with the Devil when they raised their son and that’s why he got killed.  Then there were the signs: “Thank God for Dead Soldiers,” “You’re Going to Hell,” and “God Hates Fags”.

To call such ideas stupid is to give them a dignity to which they are not entitled. The news media have competed , trying to find an appropriate word: “odious”, “contemptibile”, “disgusting”, are a few I’ve read, but stupid fits better.

The Father won at trial but a federal appellate court took his jury verdict away from him, determining that the First Amendment protected the speech of the church members. For reasons that mystified most observers, the Supreme Court accepted the case and heard oral argument this week.

The oral argument was a sorry affair, primarily due to the inexperienced advocates for both sides. One perceptive observer said it reminded him of the 1945 World Series when both teams were so depleted by WWII that sportswriter Warren Brown said, “I don’t think either one of them can win it.” Worse, the daughter of the church’s founder and patriarch argued for the church. It’s never a good idea for a lawyer that close to a case to handle it. If your spouse is a brain surgeon and you have a brain tumor, it’s probably best for her not to do the surgery. So too with lawyers.

Look for the Court to affirm the “church’s” victory. Nothing in the First Amendment’s free speech clause exempts from its coverage political speech at a funeral.

Nor does it outlaw stupid speech.


The link above is to the blog of Garrett Epps. If you have time to regularly read only one blog about legal affairs, read his; skip mine.

How the Supreme Court Learned to Stop Worrying and Love Guns

July 31, 2010

As we discussed last time, the Supreme Court’s latest gun decision in the case known as McDonald v. The City of Chicago, decided that the Second Amendment applies to the states as well as the federal government. Remember that two years ago – for the first time in the Nation’s history – the Court decided that the Amendment guaranteed an individual’s right to keep and bear arms, even though that individual never wore the uniform, never served his country under arms, and was never in the militia.(Or even the Texas Rangers.)

For the last two years the federal government has had no right to prevent you from keeping guns in your home. Now no state government can prevent it either.

Of course, before the ruling, most states already had their own constitutional provisions that protected your right, but now even if the citizens of your state voted to outlaw guns in your home, the Supreme Court would strike down that democratic decision.

Not that any such thing is likely to happen anytime soon. About 80% of Americans currently believe that we have a right to have guns in our homes.

So the federal Second Amendment now applies to the states and their towns and cities. The state of Illinois cannot stop its citizens from keeping guns in their homes, therefore, neither can Chicago, a political subdivision of Illinois.

But why? Why is the Second Amendment incorporated against the states?

Citizens Bearing Arms - Daniel Boone and Mingo

The answer demonstrates, as clearly and cleanly as Euclid could have, that the current Supreme Court is an activist court, at least when the five most conservative justices emotionally involve themselves in the outcome of a case.

Here’s why. Although the Court mustered a majority vote to apply the Second Amendment to the states, it did not muster a majority explanation of why. Of the two possible reasons to apply the Amendment to the states, both lost. One lost five to four and the other lost eight to one. Chicago should have won.

But five justices wanted a particular outcome and they voted for that outcome, even though they could not agree why.

“But wait,” I hear you say, “that’s not how it’s supposed to work.” And you are right. According to Chief Justice Roberts, judges are just umpires, calling balls and strikes, based upon their careful analysis of the law. They don’t care about how a case turns out, only about the legal reasons that require a result.



In the next post we’ll explain how Chicago lost this case. We’ll look at the most interesting of all the opinions in the case, that of Justice Thomas. We’ll call the post, “The Privileges and Immunities of United States Citizenship or How the Supreme Court learned to Stop Worrying and Love Beef!”

In meantime, here -with sound- is the opening theme of the 1950s television show, “The Texas Rangers.”

The Texas Rangers

The NRA Rides Off into the Sunset

July 26, 2010

You’ve been very patient and by now you know that the Supreme Court last month decided the most recent gun case. You also know that the Court announced that the states lack any power to prevent you from having a gun in your home. Of course, most states already have their own constitutional provisions allowing you to keep guns in your home. All the latest Supreme Court decision added was the guarantee – for as long as the case stands – that no state can change its mind, even if its citizens voted to do just that.

The Winner!

The National Rifle Association’s entire reason for existing is gone, wiped out by the United States Supreme Court simply giving it everything it wanted.

The result was no surprise, nor the fact that it came from the Court’s five most “conservative” and activist justices, the same five who just two years ago upended more than a century of settled case law which maintained that the right to bear arms applied only to members of a militia. (The same five activists earlier this term overturned a century of law and now unions and corporations can now spend as much money as they want in political campaigns.)

The latest case is fascinating, never mind that every Supreme Court watcher on the planet predicted the outcome and the five-four vote. 214 pages of text and five separate opinions will keep law students busy for a long time.

Three of the opinions are perceptive, well-written and good examples of the art of judicial opinion writing. The Court’s primary opinion and Justice Breyer’s dissent are of less interest. But Justice Thomas wrote an opinion that should give pause to anyone who believes he doesn’t think clearly. And Justice Scalia said good-by to Justice Stevens by engaging him in their long-standing argument about constitutional interpretation. (The position of Justice Stevens will win in the end. In fact, it had won before Justice Scalia ever took a seat on the Supreme Court, but he either failed to notice or just enjoys his lonely contrariness.)

So we’ll write a post about Justice Thomas’s opinion and one about Justice Steven’s final dissent. But first, we’ll have a look at the judicial activism that gave us the rule of law that nobody can keep you from having guns in your home – if you want them. (The Court has not yet decided that you must have a gun in your home, but the five gun-toters on the Court may not be through yet.)

So next time we’ll talk about how the five members of the Court got to the result they wanted, even though they could not agree on a reason supporting their decision.

Sailing to the Supreme Court

May 12, 2010

Nineteenth century American lawyer Robert Ingersoll once wrote, “If the world ever advances beyond what it is today, it must be led by men who express their real opinions.” Ingersoll lived in a more sexist time. Today he would have written “men and women who express their real opinions.”

Which brings me to Supreme Court nominee Elena Kagan.

Apparently, Solicitor General and soon-to-be Justice Kagan has spent her adult life and career studiously avoiding ever publicly revealing an opinion about anything. David Brooks of the New York Times had a perceptive piece about that yesterday, placing General Kagan in a milieu of young people who, possessed of an admirable and clear-minded ambition, began trimming their sails early in their careers in order to serve those ambitions.

Nothing is wrong with selecting and maintaining a supremely clear-headed goal in life and sticking to it. Nor are mid-course corrections anything out of the ordinary. All ships that sail the seas make mid-course corrections. No sailing ship ever gets where it is going without occasionally “tacking” and “wearing” and otherwise trimming her sails.

USS Constitution

However, a ship that does nothing else but trim her sails, never gets anywhere.

That is a challenge for people who end up on the Supreme Court. A lifetime spent avoiding issues is poor training for the Court. It becomes an internalized habit, poorly suited to the job of judging. And, one assumes, that General Kagan has not spent her life trying to become Justice Kagan simply so people will call her, “Justice Kagan.” Presumably, she wants to do something after arriving at the Supreme Court.

The problem is, we have no clue what that something might be, nor can we know whether, after a lifetime of trimming, she knows how to sail anywhere. Perhaps the president knows, but he won’t be telling us. The modern confirmation process consists of senators making boring speeches disguised as questions and the nominee mouthing as many empty platitudes as she can summon while the president studiously avoids saying anything at all.

What we do know is, for the second time in a row, President Obama, lacking the stomach for a confirmation fight, missed the opportunity to put on the Court men and women who did not trim their sails just to get on the Court.

Again a Democratic president timidly surrendered the legal dialogue to conservative, activist firebrands; depressing liberals and progressives. Perhaps worse for the long-term health of the Nation, young idealistic law students all over the nation are taught to keep their mouths shut if they want judicial careers. No matter what your politics, in the end, you have to admit that the Nation is well-served when men and women in public life express their real opinions. That such bright, well-qualified people as General Kagan feel it necessary to hide theirs is a commentary on our times. It remains to be seen if either she or the president can escape their “trimming” habits and do something that truly “advances the world” during their time of power to do so.

I chose the “sail” analogy deliberately so I could paraphrase something that progressive Professor Pamela Karlan – who I wanted nominated and still do – once said. This isn’t a precise quote but it’s close, “Of course, I would like to sit on the Supreme Court, but I wasn’t willing to spend my life trimming my sails to get there.” A great many progressive lawyers across the nation were of the same mind and many possess the intellectual firepower, convictions, and legal skills that are the progressive equivalent of conservatives Scalia and Roberts.

But those lawyers, and Professor Karlan, won’t sit on the Supreme Court. They spend their lives expressing their real opinions.

Unlike General Kagan or the man who has nominated her to the Supreme Court.


The photograph of the USS Constitution under sail was taken by Navy Journalist 2nd Class Todd Stevens and is in the public domain.

Here is more from David Brooks and Gail Collins on this subject. If you agree with the last two paragraphs – as I do – it’s time to start writing senators, presidents, and would-be presidents. In the meantime, in order to save any dwindling chance I have of sitting on the Supreme Court, I’m off to Svalbard.

The Finest Legal Mind in America

May 7, 2010

Blogging recently about the newest – as yet unnominated – Supreme Court Justice, I mentioned that Gerald Ford’s single announced criteria for his Supreme Court selection in 1976 was “the finest legal mind in America.

General Kagan

Of course, presidents don’t really look for the finest legal mind in America. They look for someone who is smart and confirmable. For many reasons, which you can read here, the pundits are predicting that President Obama will follow suit by picking someone safe and that someone will be Solicitor General Elena Kagan.

If he does, I won’t be able to hide my momentary disappointment. If he picks her, and some news outlets are already reporting this afternoon, that he will, it means that yet another Harvard trained lawyer and another East-coast denizen will sit on the Court. Every member of the Court will have gone either to Harvard or Yale for law school if General Kagan is the pick.

Judge Thomas

Recently, Chief Justice John Roberts was asked about the fact that all the members of the Court went to elite law schools. He responded, “That’s not true. Some of them went to Yale.”

Better for President Obama to pick either Judge Sidney Thomas of the Ninth Circuit or Governor Jennifer Granholm of Michigan. Thomas is a westerner and Granholm is a politician and the Court sorely needs both.

Governor Granholm

But, if President Obama had any nerve and wanted to pick the finest legal mind in America, he would nominate Professor Pam Karlan of Stanford. He won’t though. She’s not a safe pick. She’s openly gay and – worse – openly liberal. Too bad, because she probably really is the finest legal mind in America today. Not only is she smarter than Justice Scalia, she is even smarter than Justice Scalia thinks he is.

Professor Karlan

At least now, Professor Karlan and I have something in common. Neither of us is getting picked for the Supreme Court.


UPDATE: By now you know that President Obama chose the safe, expedient Ivy Leaguer Elena Kagan as his nominee to the Supreme Court. Here is a thoughtful piece by David Brooks on her career, demonstrating the difference between General Kagan and Professor Karlan. Kagan avoids taking public positions at all costs, while Professor Karlan once said word to this effect: Of course, I would like to be on the Supreme Court but I have been unwilling to trim my sails for my entire lifetime to get there.”  Apparently Kagan was willing to trim her sails in service of her ambition. In that, I suppose the President found much in common.

Supreme Court Short-Listed!

April 19, 2010

Justice Stevens in 1976

Good news! I’ve been short-listed for Justice John Paul Steven’s seat on the Supreme Court! Five people have now said that I would be a good replacement for him and, you have to admit, that’s a pretty short list. I’ve left room at the top for President Obama to add his name.

For those of you who know me personally, the FBI will be doing the necessary background check and an agent will soon arrive at your door or call you. Here are some helpful phrases to help you with the interview: “great veneration for the law,” “highest personal standards,” “unquestionable moral purity,” “great personal modesty,” “humility,” “genius,” “sleeps with his copy of the Constitution under his pillow.”

And most important, “finest legal mind in the country.”

Of course, I could name five lawyers in as many seconds who think I’m a dolt, but I intended for them to think that, you see. Sometimes it is a good thing when your opponent underestimates you. Think of the French attitude about the English before Agincourt or King George III’s dismissive ideas about American colonists.

President Ford said, at the time he nominated Justice Stevens, that he was looking “for the finest legal mind in America.” That was not entirely accurate, of course. If the finest legal mind in America in 1975 had belonged to a Democrat, I imagine that President Ford would have begun a search for the second-finest legal mind in America.

Still, that’s a pretty good criteria for a President to use. Mostly they don’t, but they ought to.

A good case can be made that Ford did get the finest legal mind in America in 1976 when he picked Justice Stevens. Ford himself certainly thought so. Toward the end of his life Ford said that he was happy if his entire presidency was judged by that one act of selecting John Paul Stevens for the Supreme Court.

Justice Stevens’ retirement marks the end of an era in this Nation. He is the last World War II veteran serving in high office in Washington. When he leaves this summer, none will remain.

Admiral Isoroku Yamamoto

To Admiral Isoroku Yamamoto’s great misfortune, the Navy recruited the mind of John Stevens to be a cryptologist. He joined and, with orders to report to Pearl Harbor, went on active duty on December 6, 1941.

Nobody underestimated Admiral Yamamoto who, you will remember, was the Commander-in-Chief of Japan’s Combined Fleet. Knowing that Japan could never win a protracted war with the United States (He had lived in the U.S. and studied at Harvard) Yamamoto designed Japan’s strategy of delivering a knockout blow to the U.S. Navy in a surprise attack at Pearl and then bringing the remnant of the U. S. fleet to a decisive battle. Yamamoto hoped, but apparently didn’t really believe, that two convincing naval defeats would bring the U.S. to the bargaining table. It didn’t work, of course. The U.S. won the Battle of Midway, but it is worth remembering that Midway was a close-run thing for a while.

After Midway, Yamamoto remained in charge of the Japanese Navy and was revered by his sailors and by the Japanese people. His was the finest military mind in Japan.

Last Photo of Admiral Yamamoto Alive

Justice Stevens spent the entire war stationed at Pearl, reading the Japanese military’s mail. He worked for Admiral Layton, the Navy’s chief intelligence officer on Admiral Nimitz’s staff. Stevens was the junior officer who discovered Yamamoto’s plans to visit forward military installations in the Solomon Islands. Stevens reported Yamamoto’s precise itinerary, including what planes would be flying escort.

President Roosevelt personally ordered an ambush. Sixty-seven years ago yesterday, a squadron of P-38s attacked and Admiral Yamamoto died.


UPDATE:  Here, from an editor at the Chicago Tribune who is writing a biography of Justice Stevens, is a more detailed account of his war service. It differs in detail from other published articles on which I based this post.