Monday, September 24, 2007

Justice Stevens and Admiral Yamamoto

Jeffrey Rosen had an article yesterday on Justice John Paul Stevens to show that Stevens doesn't consider himself a liberal; just that the Court has moved more conservative since he was nominated by Gerald Ford. So what was once centrist is now liberal. Perhaps. Observers could argue that back and forth.

Justice Stevens is quite open in how he tries to manipulate Justice Kennedy's opinions.
Stevens himself, however, has been notably successful in building majorities by courting his fellow justices — in particular, Kennedy. His methods of persuasion are intellectual rather than personal, and they are closely tied to the court’s procedure for deciding cases. After the justices hear the oral arguments, they meet in a private conference to deliberate. After the chief justice speaks, each of the remaining justices speaks in order of seniority, so that Stevens speaks second. Then the justices vote, and the majority opinion is assigned. The majority opinion later circulates among the justices, and on rare occasions a justice may then change his or her vote, and a majority can become a dissent. But “you very rarely win votes if there aren’t five votes persuaded after our conference,” Stevens stressed. “Very rare.”

When he is in the majority, Stevens is careful not to lose votes that start off on his side, often assigning the opinion to Kennedy when Kennedy seems to be on the fence. “Sometimes,” he told me, “in all candor, if you think somebody might not be solid” after casting a vote in conference, “it might be wiser to let that person write the opinion,” because after defending a position at length, people “tend to become even more convinced” than when they started. For example, Stevens was effective in winning over Kennedy by asking him to write the majority opinion in Lawrence v. Texas, the 2003 decision striking down sodomy laws, which many liberals consider the Brown v. Board of Education of the gay rights movement. “It worked out O.K.,” Stevens told me, with typical understatement. “I don’t know if I’m entitled to the credit or Tony’s entitled to the credit, because he wrote an exceptional opinion.” In other cases, Stevens has written the majority opinion himself in an effort to shore up Kennedy’s vote. In April, for example, in a 5-to-4 case, the court allowed a lawsuit to proceed against the Environmental Protection Agency for its refusal to regulate global warming under the Clean Air Act; by citing several of Kennedy’s previous opinions in his own opinion, Stevens persuaded Kennedy to stay in the liberal camp.
I wonder how Justice Kennedy enjoys seeing how his colleagues are working to try to get his vote. I suspect that he enjoys all the attention and being the guy who gets to decide how all these 5:4 decisions come out. But there does seem to be something peculiar to have your coworkers talk to the press about how they're playing you. Maybe Stevens figures it is so obvious so there is no point in trying to hide what he's doing. But would you like to see that sort of talk from one of your coworkers?

There was this interesting tidbit about Stevens' personal biography:
After graduating Phi Beta Kappa from the University of Chicago in 1941, Stevens enlisted in the Navy on Dec. 6, 1941, hours before the Japanese attacked Pearl Harbor. He later won a bronze star for his service as a cryptographer, after he helped break the code that informed American officials that Adm. Isoroku Yamamoto, the commander of the Japanese Navy and architect of the Pearl Harbor attack, was about to travel to the front. Based on the code-breaking of Stevens and others, U.S. pilots, on Roosevelt’s orders, shot down Yamamoto’s plane in April 1943.

Stevens told me he was troubled by the fact that Yamamoto, a highly intelligent officer who had lived in the United States and become friends with American officers, was shot down with so little apparent deliberation or humanitarian consideration. The experience, he said, raised questions in his mind about the fairness of the death penalty. “I was on the desk, on watch, when I got word that they had shot down Yamamoto in the Solomon Islands, and I remember thinking: This is a particular individual they went out to intercept,” he said. “There is a very different notion when you’re thinking about killing an individual, as opposed to killing a soldier in the line of fire.” Stevens said that, partly as a result of his World War II experience, he has tried on the court to narrow the category of offenders who are eligible for the death penalty and to ensure that it is imposed fairly and accurately. He has been the most outspoken critic of the death penalty on the current court.
Gee, I hadn't known of his connection to the shootdown of Yamamoto. What strikes me is his questioning of the decision to strike down Japan's most celebrated tactician and the man engaged in planning more attacks on our forces in the Pacific. During the height of World War II, how many people were concerned about the humanitarian issues of shooting down the mastermind of the Pearl Harbor attack?