On Dec. 8, 2000, when George W. Bush's lawyers were asking the Supreme Court to intervene in the presidential election and stop the vote counting in Florida, Justices John Paul Stevens and Stephen Breyer were at a Christmas party at the National Art Gallery. The two men had a brief discussion about the request and quickly agreed it was frivolous: Bush could not meet the legal standard of showing that he would be "irreparably harmed" if vote counting continued. The court, they thought, was clearly going to reject Bush's claim.
That, of course, is not what happened. The Supreme Court took the case and ordered Florida to stop counting votes and Bush became President. It's a striking anecdote, not only because it offers a rare look at the early discussions among Justices on a pivotal moment in U.S. history, but also because it shows that shock over the Bush v. Gore ruling was not limited to outraged Al Gore partisans. Two Supreme Court Justices one appointed by a Republican President (Stevens) and one by a Democrat (Breyer) thought Bush had no case.
Stevens tells this story in Five Chiefs, his informative and very appealing new memoir of life on the Supreme Court. Rather than write a straight autobiography, the 91-year-old Stevens who retired last year after 34 years on the court chose to organize the book around the five Chief Justices he worked with professionally. He begins with Chief Justice Fred Vinson, whom he got to know as a law clerk on the court in 1947, and ends with the current Chief Justice, John Roberts.
Five Chiefs is hardly an exposé. Stevens shows extraordinary respect for the court as an institution and does the same for his former colleagues even ones with whom he often disagreed. The Supreme Court, in his eyes, is a vital force for justice, comprising men and women who make an earnest attempt to get the law right.
That's not to say Stevens tries to hide his feelings about the law or his colleagues. He takes clear pride in the court's civil rights rulings, its role in promoting equal rights for women and its insistence that the rule of law must prevail as in cases like U.S. v. Nixon, in which a unanimous court ordered President Richard Nixon to hand over the Watergate tapes. At the same time, he is clearly pained by the court's recent ruling in Citizens United v. Federal Election Commission, which recognized the right of corporations to spend money in political campaigns, and by its whole approach to campaign-finance laws which he believes the court has been too quick to strike down.
Still, Stevens is unfailingly courteous toward the five Chief Justices he writes about, in some cases even generous. Historians often caricature Warren Burger, who became Chief Justice in 1969, as a retrograde law-and-order conservative who channeled the views of Nixon, the President who appointed him. But as Stevens takes pains to note, Burger not only wrote the Watergate ruling that helped end Nixon's presidency; he also penned a landmark 1971 opinion that gave women broad new rights under the equal-protection clause and another opinion that upheld school busing as a remedy in desegregation cases.
Burger's successors get a similarly illuminating treatment. Stevens emphasizes how eminently well prepared John Roberts was for the job of Chief Justice and makes clear his respect for his legal acumen. William Rehnquist was so highly efficient in running the court that on oral-argument days he "ensured that we entered the courtroom at precisely 10:00 every time."
The anecdotes in the book give a rare behind-the-scenes look at life on the court, and many of them reflect how tradition-bound and detail-oriented it is far more so than even the White House or Congress. Stevens is still exercised about his colleagues' decision to move a table in the Justices' deliberation room. "Some might consider the change trivial," he writes, "but I thought that moving the large oblong table around which the nine justices sit during their conferences could end up having a subtle and unfortunate impact on deliberations." (He is light on details about how the move actually mattered. One effect, it seems, is that it was harder for him to hear the Chief Justice and Ruth Bader Ginsburg.)
Stevens is not above pointing out some Justices' weaknesses and follies, and they add a welcome dose of vinegar to the narrative. He suggests that Burger attentive to the fact that the press liked it when the court upheld First Amendment claims assigned himself the opinions the media was likely to praise while giving the ones they would attack to Justice Byron White. He is tartly critical of Rehnquist's decision to "embellish his robes" by adding four gold stripes to each sleeve a decision, the book says, the other Justices unanimously tried to talk him out of.
One of the biggest issues Five Chiefs raises is one that Stevens avoids taking on directly the striking ideological transformation the court has undergone since he joined it in 1975. Back then, he was a Republican judge appointed by a Republican President Gerald Ford and Burger was a dyed-in-the-wool conservative. Three decades later, Stevens left the court as one its most liberal members and Burger's opinions in cases like the one concerning school busing, Swann v. Charlotte-Mecklenburg Board of Education, would put him well on the liberal side of the current court.
Stevens doesn't dwell on how his views are currently in retreat on the court or on the battles he did not win. When Bush v. Gore was handed down, many Supreme Court watchers attacked it as wildly wrong on the law and as an unprincipled power grab. But after telling his story about his conversation with Breyer, Stevens says simply, "What I still regard as a frivolous [appeal] kept the Court extremely busy for four days." That conclusion is classic John Paul Stevens: understated and generous toward those he differs with, but absolutely clear on where he believes justice lies.