Feb 22, 2014

Posted in Stevens Rehab Tour

Justice Stevens Authors A New Book That “offers a manifesto on how the Constitution needs to change”

Justice John Paul Stevens has authored a new book, titled “Six Amendments: How and Why We Should Change the Constitution.” Here is the description of the book from the publisher:

For the first time ever, a retired Supreme Court Justice offers a manifesto on how the Constitution needs to change.

By the time of his retirement in June 2010, John Paul Stevens had become the second longest serving Justice in the history of the Supreme Court. Now he draws upon his more than three decades on the Court, during which he was involved with many of the defining decisions of the modern era, to offer a book like none other. SIX AMENDMENTS is an absolutely unprecedented call to arms, detailing six specific ways in which the Constitution should be amended in order to protect our democracy and the safety and wellbeing of American citizens.

Written with the same precision and elegance that made Stevens’s own Court opinions legendary for their clarity as well as logic, SIX AMENDMENTS is a remarkable work, both because of its unprecedented nature and, in an age of partisan ferocity, its inarguable common sense.

Huh. Where do I even begin.

First, let’s start with the author credit. On the cover of Five Chiefs, his name was listed as just John Paul Stevens.


But on the cover of Six Amendments, it says “Justice of the Supreme Court of the United States (Ret.).”


Why would the publisher write that Stevens Justice on the front cover? Of course, to latch onto the gravitas of a Supreme Court Justice offering amendments to the Constitution! That’s the problem Even the summary of the book alludes directly to Stevens writing this book the same way he wrote his opinions–as if he is offering the views of a Judge on the law. I find this troubling.

Written with the same precision and elegance that made Stevens’s own Court opinions legendary for their clarity as well as logic, SIX AMENDMENTS is a remarkable work, both because of its unprecedented nature and, in an age of partisan ferocity, its inarguable common sense.

Well, actually it is not unprecedented for a Justice to write a book about constitutional law and present-day constitutional issues. Justice Story did it a century ago. Of course, it would be unimaginable for a Justice to do so today. Oh wait, Justice Stevens just did.

(In case you are curious, on the covers of Making your Case, Reading Law, A Matter of Interpretation, Active Liberty, and Making our Democracy Work, the names of Justice Scalia and Breyer are printed without any reference to their status as Justice.)

And that brings me to my second point. He is not retired from the Supreme Court. Read his resignation letter. He retired from “active service as an Associate Justice” pursuant to 28 U.S.C. 371(b). There is a difference.

Any justice or judge of the United States appointed to hold office during good behavior may retain the office but retire from regular active service after attaining the age and meeting the service requirements, whether continuous or otherwise, of subsection (c) of this section and shall, during the remainder of his or her lifetime, continue to receive the salary of the office if he or she meets the requirements of subsection (e).

He is still an Article III Judge. He has a chamber at the Supreme Court, and maintains a law clerk. I don’t think he has sat on any cases on the Circuit Court, unlike Justices Souter and O’Connor who routinely sit on Circuit Cases.  That Stevens is not in active service should not make a difference (not that the Justices are bound by the Code of Ethics anyway).

Third, and most strikingly, let’s focus on the content of this book. It is not uncommon for Judges to express a desire to change the law in their opinions. But not in a book. How is it appropriate for a sitting Justice to write a “manifesto” and call for constitutional amendments when they take an oath to uphold the very document. I never even had to think about it, but could a Justice of the United States even vote in a ratifying convention for an amendment?

Also, a point on the word “manifesto.” In my book, I labored over whether to use the pejorative “manifesto” to describe Ken Cucinnelli’s book. This is not a good word. That Stevens’s publisher puts that out there, in an effort to sell books, is troubling.

And what are these six amendments? BusinessWeek suggests that one recommendation is to amend the Second Amendment with five words (shocker).

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms when serving in the militia shall not be infringed.

Stevens elucidates:

“Emotional claims that the right to possess deadly weapons is so important that it is protected by the federal Constitution distort intelligent debate about the wisdom of particular aspects of proposed legislation designed to minimize the slaughter caused by the prevalence of guns in private hands.”

I suspect another one is his recommendation to amend the Supremacy Clause to override Printz v. United States, so it would read:

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges and other public officials. in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

These proposals have a zero percent chance of success. But that is not the point.

If Justice Stevens wants to transition from a Justice of the United States to an advocate for constitutional change, he should resign his commission under Article III via 28 U.S.C. 371(a). He would keep his salary for life, but no longer be a federal judge. He would be free to write whatever he wants.

As an aside. I suppose “Six Amendments” is a numerical follow-up to “Five Chiefs.” I would recommend he round out the trilogy with “Seventh Circuit from 1970-1975:  The Golden Age of the Courts of Appeals.”

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  • The idea that Justices can’t support constitutional amendments through the procedures prescribed for that purpose in the very document is silly. They would no more be in violation of their oaths than a legislator who voted in favor of a constitutional amendment would be.

    • Consider this example. Justice Stevens wrote the dissent in Heller. He continues to think his view was correct, and the majority was wrong. Nonetheless, he advocates, and even drafts a constitutional amendment to correct a Supreme Court decision he thinks is wrong. This would seem to be the epitome of an advisory opinion on a political question. He is not deciding any case or controversy before him, but offering his vision of what the Constitution should say. There is a stark difference from a member of the legislature, or even the people of the states, doing this. They are supposed to be the ones changing the law. Not a sitting Supreme Court justice. I may write more about this.

      • A proposal for what the law *should be* seems to me to be almost the exact opposite of an opinion about what the law *is*.

        Maybe there’s some bit of judicial ethics I’m unaware of that bears on this. But what you said is: “How is it appropriate for a sitting Justice to write a “manifesto” and call for constitutional amendments when they take an oath to uphold the very document.” Proposing amendments to the document in no way runs counter to fulfilling one’s oath to uphold it.

        Your dislike of Justice Stevens is obvious. But this particular criticism seems more far fetched then usual.

      • cowboyinbrla

        Actually, the epitome of an advisory opinion on a political question would be just that: an advisory opinion issued by the court. The tradition against advisory opinions has, I believe, always been construed as being against the “actual cases and controversies” provisions of Article III; the COURT cannot issue an advisory opinion because the COURT does not properly have a case or controversy before it. But a justice? It may seem tawdry, but unless Stevens were to sit in on a case on which he’d expressed an extrajudicial opinion, I don’t see a problem. At least not when hacks like Scalia routinely opine in speeches that X or Y or Z would be easy to defend as constitutional. If a sitting justice can do that, offering suggestions for amendments (as opposed to, say, suggestions on a case made to one’s former colleagues still sitting on the bench) is trivial.

  • Joe.02

    Multiple justices, of course, wrote on constitutional issues off the bench & continue to do so. Justices O’Connor, Rehnquist, Breyer and Scalia wrote books on such issues, putting aside their lectures and the like. Scalia took part back in the day in a PBS sponsored panel discussion on constitutional issues. At various times, more than one of them opined on how things “should be” in various respects. Justices now and in the past also lectured, domestically and in foreign locales, on such issues.

    The blurb is overheated. Noting on the cover that he is a Justice of the Supreme Court and/or wrote another book, however, is not that noteworthy. It is sort of noteworthy and is standard to include such labels on book covers. Scalia might not be labeled “Justice” but “A Matter of Interpretation,” e.g., includes a photo of him in a black robe with law books behind him on the cover.

    But, so is the idea that there is somehow something wrong with him advocating amendments. There is talk in a comment about an “advisory opinion.” Really? Judges repeatedly write law review articles on various topics. These are “advisory” in that they are not keyed to specific cases in most cases. I was not under the impression there was something wrong with this process. I also wonder the legitimacy of various writings such as that of Judge Posner who has opined on various legal matters including what should be the law in various cases. I was not under the impression this was unethical.

    I second Mackie-Mason’s comments, including the “obvious dislike” of Stevens. The final comment of the OP is appropriately catty in that regard. Let the basically retired (not that it would really matter any way) 93 year old guy opine. Sheesh.

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  • Jim Bullard

    I fail to see why a justice cannot propose an amendment if they wish to. They have as much right as any other citizen plus greater familiarity with the Constitution and the history behind it. And of course they also have the same burden of convincing others that it should be adopted.

    I would consider his recommendation on the 2nd amendment to be a reasonable clarification. If one reads the history of the century or so before the revolution they will discover that among the reasons for the revolt against England was that while England taxed the colonies they did very little to defend them from raids by the French in Canada or by natives who weer upset by the colonists. Defense of the settlements was left primarily to the local militias who were also called upon by England to aid campaigns such as the disastrous one against Cartagena in 1741 which resulted in huge loss of American life.

    Further it was not initially thought after the Revolution that the United States should have a large standing army or navy sufficient to repel attacks. The militias remained the primary line of defense. My own great great grandfather fought in the War of 1812 as part of a militia. When read in that context it seems clear that the 2nd amendment is referring to what, at the time, the authors saw as our national defense. The current construction is one read through the lens the very different current situation in which local militias of the sort envisioned at the writing of the 2nd amendment no longer exist nor do they carry the burden of our nation’s defense.

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