Reminiscences of JUSTICE STEVENS by His Law Clerks

Article excerpt

Three memorable opinions

by Carole Lee

My coclerk Jeff Lehman and I felt that we had the best clerkship in the building. We were the ones who worked for Justice Stevens, whom we and all the other clerks admired greatly for his intellect and his lawyerly, intellectually honest approach to the law. Since there were just two of ing it was a chambers meeting every time the Justire came into our office. sat down in lite sagging black leather armchair by the door, and started to talk. We didn't have to write bench memos. We weren't pan of the cert pool, so we didn't have to write cert memos aboiu petitions that weren't going to be discussed at conference. We had the privilege of working with an incredibly smart, thoughtful Justice with an interesting mind and a remarkable memory.

Justice Sievcns wrote his own opinions in his own distinctive voice. The 1982 Term opinions that I find most memorable are two concurrences and an opinion respecting ihe denial of certiorari. Karcher. Daggett was a challenge to the bizarrely-shaped congressional districting map created by the New Jersey legislature on a straight parry-line vole. In his concurring opinion. Justice Stevens restated his view that egregious political gerrymandering is unconstitutional because the Equal Protection Clause prohibits discrimination against political groups.

One of the districts, including parts of seven counties, was shaped like a swan with appendages stretching into distant parts of the slate. Another district along the coast was contiguous only for vachtsmen. To show how far the districis departed from compactness and ronliguily. Justice Stevens decided that a color map should be included in the U.S. Reports. The chief juslice objected that it would be too expensive. Justice Stevens responded that the extra printing cost was less than the amount that he saved the Court by having only two law clerks.

Another memorable opinion was Justice Stevens' concurrence in EEOC. v. Warnung.- The state asserted that the Tenth Amendment. as interpreted in National league of Cities v. Usery,3 precluded the application of the federal age discrimination statute to slate fish and game wardens. Justice Brennan was able to assemble a majority that rejected the state's position on the basis that National League of Cities was distinguishable on the facts. Although the Justice joined the majority, his concurrence took a bolder position on the law. He declared that National League of Cities, was so plainly incorrect that, stetre decisis a notwithstanding, "the law would be well served by a prompt rejenion of [its] modem embodiment of the spirit of the Articles of Confederation."

He explained his position in sweeping historical terms; the Commerce Clause "was the Framers' response to the central problem that gave rise to the Constitution itself." Over the course of history, the Court had occasionally given a "miserly construction" to the Commerce Clause, but it had later repudiated those cases to allow federal regulation of an expanding national economy. Justice Stevens added that he thought that the benefits of a mandatory retirement age exceeded the burdens, but that his personal views on such matters were totally irrelevant to his judicial task. This combination of boldness and restraint was quintessential Justice Stevens. Several years later, National I. eagiie of Citifs was overruled.1

Finally, a non-standard writing by the Justice that term had a salii tan1 effect on the course of the law. In McCmy v. Nnv York, the prosecution had exercised peremptory challenges to remove all blacks from juries that convicted black defendants. Justices Marshall and Brennan dissented from the denial of certiorari. declaring that the Court should reexamine its 1965 decision in Swain v. Alabama,'' which placed a nearly insurmountable burden of proof on defendants seeking a remedy for racially motivated peremptory challenges. In response, Justice Stevens wrote an "opinion respecting the denial of remoran,"'* in which he acknowledged the importance of the underlying issue but stated that "further consideration of the substantive and procedural ramifications of the problem by other courts will enable us to deal with the issue more wiselv at a later date. …