The Economic Club of Southwestern Michigan decided to invite Justice Stevens to speak. So of course he found three cases from Michigan he supported, and told us why he is right. And, he praised Gerry Ford for appointing him to the Court, organizing the Carter Philips brief in Grutter, and pardoning Richard Nixon (not in that order).
First, Justice Stevens spoke about FORT GRATIOT SANITARY LANDFILL, INC., PETITIONER v. MICHIGAN DEPARTMENT OF NATURAL RESOURCES ET AL. (1992), a case I had never heard of. In that case, Justice Stevens wrote the majority opinion for 7 members of the Court. CJ Rehnquist dissented, joined by Justice Blackmun. Why did he mention this case? Because in writing that decision he learned that a nearby airport where he learned to fly a plane became a garbage dump.
In 1992 the Supreme Court decided a case challenging the constitutionality of a provision in the solid waste disposal program in Saint Clair County, Michigan, that prohibited private landfill operators from accepting any solid waste that did not originate in the County. I was assigned the task of writing the Court’s majority opinion invalidating the county ordinance. Like much of my work at the Court, that task was a learning experience. As a matter of law, I learned that the business arrangements between out-of state generators of waste and the Michigan operator of a waste disposal site could be viewed either as “sales” of garbage or as “purchases” of transportation and disposal services, but in either case they had an interstate character. As a matter of fact, I learned that the operation of landfills was sufficiently profitable to motivate some businesses to abandon other uses of their property. And specifically, it was while I was working on that opinion that I learned that the Oselka Airport, in Three Oaks, Michigan, where I had learned to fly a single-engine Cessna 172, had become a garbage dump.
Second, he turns to Wygant v. Jackson Board of Education (1986). This case involved a policy where a Board of Education deviated from the normal tenure policy, and preserved the positions of recently-hired black teachers, and fired more senior white teachers. Justice Stevens dissented alone. Justice Marshall penned another dissent jointed by Justice Brennan.
Justice Stevens reveals a conversation he had with Justice Powell, who went on to author the plurality:
In 1985, the Supreme Court granted the white teachers’ petition for certiorari. During the week before the oral argument of the case, I had a meeting with my good friend Lewis Powell in his office to discuss another matter. As I was leaving, I made the observation that at long last during the following week we were going to hear an easy case involving an affirmative action issue. He agreed with my assessment of the difficulty of the case, but neither of us realized that we did not agree on how the case should be decided. Indeed, neither of us expected the case to produce so many opinions.
Stevens quotes from his opinion, which focuses on the benefits of minority teachers to education children, as a segue to Grutter and Gratz:
I believe we should first ask whether the Board’s action advances the public interest in educating children for the future.” I then explained why I believed that an integrated faculty would benefit the entire student body rather than merely providing role models for minority students.”
Third, we turn to Grutter. Stevens discusses the ever-popular brief by Carter Philips and Virginia Seitz on behalf of the generals, and suggests that it was Gerry Ford who pushed for this brief.
In that explanation she relied on a friend-of-the-court brief filed by two Washington lawyers, Carter Philips and Virginia Seitz, on behalf of high ranking retired officers and civilian leaders of the United States armed forces. After my retirement from the CourtI I wrote to Carter Philips asking if there was any truth in the rumor that Gerald Ford had played a role in the decision to file that brief. Taking pains to make sure that he did not breach any attorney-client privilege, Carter’s response acknowledged not only that Ford was the “but-for” cause of the brief”s preparation and filing l but also that President Ford had been the first person to suggest that former military officers as a group had a very important message to present to the Court.
The influence of Gerry Ford on the Supreme Court’s jurisprudence, it seems, continued long after his appointment of JPS.
The identity of the 29 leaders who joined the brief added impressive force to their argument. Fourteen of them – including men like Wesley Clark and Norman Schwarzkopf – had achieved 4 star rank. They were all thoroughly familiar with the dramatic differences between the pre-1948 segregated forces and the modern integrated military. President Ford, who also rendered heroic service during World War II, played the key role in selecting them. …
Given the fact that Gerald Ford played a central role in the filing of the military brief, it is certainly reasonable to conclude that he shared the views that the Court adopted in that case.
Stevens then takes credit for the argument:
The authors of the brief did not make the rhetorical blunder of relying on a dissenting opinion to support their legal approach, but they effectively endorsed the views that I had unsuccessfully espoused in the Wygant case.
Stevens closes by praising President Ford for replacing Justice Douglas for appointing him, and pardoning Richard Nixon. Random.
I have always been especially proud of the fact that he selected me to fill the vacancy on the Court when Bill Douglas resigned and particularly admire his decision to pardon Richard Nixon even though he must have been aware of the fact that that decision might result in his defeat in the 1976 Presidential election.
Then he took questions, and had this to say about his colleagues:
When asked which of the justices he served with he admired the most, he answered that he respected all of the justices, even when they disagreed.
“They are honest, dedicated people who, unfortunately, can make profoundly erroneous decisions,” Stevens said.
Keep it classy.
Let me focus on one statement in his speech that is factually false:
“After my retirement from the Court…”
Maybe he is confused, and thinks he retired. But he didn’t. He has retained Senior Associate Justice Status. He keeps chambers, and a clerk at the Court! He is still an Article III Judge. He hasn’t retired. But he should!
Can someone, anyone, give me a single reason why Justice Stevens has not retired for real? He does not sit on any Circuit Courts (unlike Justices Souter and O’Connor). All he does is give speeches critical of decisions he doesn’t agree with, and praises decisions he wrote or joined. He has every right to be a pundit, but I can’t understand why he continues to serve as a Senior Associate Justice, with chambers and a clerk at the Court. This isn’t an honorific title–although based on how the statute is drafted, there is no affirmative obligation to hear cases if the Chief Justice has no objection.
Also, while I’m on a rant, may I offer deep praise for Justice Souter. Since he has retired, he has comported himself like a mensch. Barely a peep from him, other than opinions he has written on the First Circuit. This is the proper route for an ex-Justice to take.