Transcripts For CSPAN Justice John Paul Stevens Legacy 20240

The federal Bar Association, Northern District of california chapter and the American Constitution Society bay area chapter. I looked welcome cspan which is broadcasting the discussion. In 10 years or so but i have been putting on that i have been putting on programs like this, cspan is here so i have made it. It is some of the most awful programming on television when congress is out of session. Onthoughtful programming television when congress is out of session. The next on january 28 is on settling cases in the ninth circuit. We are going to save time at the end of the program for questions. If any of her to you, howard panelists areour discussing, write them down so you dont forget. ,o my left is Leondra Kruger associate justice of the California Supreme Court since 2014. Prior to her tenure, she served in the u. S. Department of justice and before that she was the acting deputy solicitor general for president obama. She argued 12 cases in the United States Supreme Court and twice received the attorney generals award for exceptional service, the highest award. She is a graduate of Harvard College and gail law. Yale law. She clerked with Justice Stevens. To her left is jeff fisher, besser of law and codirector of the jeff is one of the leading authorities on Supreme Court practice and has argued over three dozen cases. He was the winning advocate in crawford v. Washington. And riley against california on smartphone Privacy Protection rights. He was one of the plaintiffs counsel on obergefell versus hudson. He is a graduate of michigan law. Reinhardtwith justice and Justice Stevens. O his left is Kathleen Hartman she has a private practice representing defendants in highstakes litigation. During the Obama Administration she served as harvard graduate of college and law school and clerked firm merrick garland. Also for Justice Stevens. Finally on the far left of the panel which is not a phrase he will hear often is daniel press who is nominated and confirmed to the u. S. Court of appeals for the ninth circuit, finally getting through the hazing. As a partner at himself. Ed law school he clerked for jay Harvie Wilkinson on the Fourth Circuit court of appeals in late justice antonin scalia. Lets get the ball rolling with Justice Kruger who will discuss some of Justice Stevens approaches to judging. Ben, ander thank you, thank you for the opportunity to participate in this event remembering and celebrating the legacy of Justice John Paul stevens. Others will address other aspects of the justices remarkable service, the impact that his work had on the substance of the jurisprudence, judicial philosophy. I will focus on how i best new the justice, knew which was the 2003, 2004 term. What i observed from watching not just the substance for deciding cases but the day today habits of judging day to day habits of judging. It is one of the values of a clerkship. You spend all of your time reading Supreme Court opinions, deciding what arguments you find persuasive and what you dont. Unless you happen to know one in real life, you have no idea how the job is done. How do they decide the most difficult questions in our country . How do they talk about what they do . Looking back on it now i am a judge myself, i have feel fortunate to have learned to those things from Justice Stevens. I knew before i started my job was going to be different from that of some of my colleagues. I knew i would be writing separate opinions. Justice stevens was even at that time by for the leader in number of separate opinions written. I knew unlike my colleagues down the hall, i would be reading fully one fourth of the petitions for review that came into the court because Justice Stevens did not produce of it in this ownew we would be going our way frequently. I did not know the reason why until i started the clerkship. I learned when he talked about cases and each of these things, it was not because he was so enamored with his own voice. It was not because he didnt know how to get along with others. It was because he felt it was important for him at a fundamental level to decide each case according to his judgment about what the law commanded. Whether others agreed with him or whether they didnt was not his concern. He knew his job was to do not what the crowd wanted him to do, whether the crowd be a majority of his colleagues, whether it be the desires of politically powerful people with their system, whether it be the wishes of the public. He knew his job was to do what he felt was right under the law. Not only that but to be transparent and honest about his understanding of what the law commanded. He was sort of famously resistant to labels like liberal or conservative. It was not because he misunderstood what people meant when they used them, but he found them misleading and perdition is. He understood what his job was, fundamentally different from politics. It was a running joke we had no idea what his politics were, even though he had been a lifelong republican and was appointed by a republican president. We didnt have the first clue who he had diverted had voted for. It was a point of pride for us, he was sworn in at the Supreme Court itself and not at the white house as some of his colleagues had done. That was important, the symbolism to demonstrate that once he took the oath of office he was not beholden to the president who appointed him or any force, that he was there to serve people of all parties and to do equal justice under the law. We were surprised to discover he had accepted an invitation for a state dinner at the white house, given his antipathy towards anything political. We were hoping he would come back with juicy insights into his political leanings. It was a time people talked about politics lost. It was not long after bush v. Gore and the start of the iraq war. We were sorely disappointed. When he came in the next day the most he said was the president is very attractive for that was the most political commentary we got the entire year. It is hard to talk about Justice Stevens without mentioning his frameless famous humility. There is no other way to describe it. Even though Justice Stevens had been around a long time and seen he had been a central player in a lot of the development, he always remained open to rethinking his views. He did the work and read the brief carefully, read the cases again. He was open to changing his mind. Didnt happen very often. Nine times out of 10, look back at the separate opinion he had written 20 years earlier and say i think we were dead right. That was a big phrase for him. He was willing to do the work and had the humility to consider and reconsider his views to make sure he was getting the law as right as it was possible to get it. The last thing i will mention is his approach to writing opinions which is emblematic of the diligence and humility with which he approached the work. Justice stevens unlike many of his colleagues wrote the first himself. It was a habit he had acquired as a law clerk to Riley Rutledge Wiley Rutledge in the 1940s. The reason he did it was not so much he was especially concerned about the way words or phrases appeared in his opinions, although he was, but it was a performed discipline function. Thats his way of ensuring based on his review and study of the case it was correct. He wrote down as much as he needed to write in order to ensure he was actually thinking the case all the way through. Sometimes he would discover in writing out that first draft, the opinion would not write. He discovered that and did not hesitate to change his mind to let them know he would not be atg the opinion as all. The diligence it takes to reflect and drill down as deeply as necessary to ensure you are , i think right thing what of the most important lessons i have learned from Justice Stevens. Reflection onh a how i think Justice Stevens would have described himself as a judge. Last year in may, two years passing, his former law clerks gathered in florida near his home to celebrate with him his 99th birthday and the release of his memoir. We had the opportunity to ask him questions including reflecting on his life and legacy. One of the questions was, you have lived such a full and remarkable life. What advice do you have for those of us who would like to follow in your footsteps . I think i am projecting, but we were all hungry for the answer. I dont know what i was expecting but sometimes prescriptions are nice like eat a grapefruit a day, take up bridge, walk 10,000 steps. His answer was nothing so prescriptive or for fitness oriented. Always work hard and do your best. I thought about that often because in part Justice Stevens wasnt the kind of person who dispensed advice readily. He thought it was presumptuous to tell other people what they should or should not be doing. Summary ofs good a his record on the Supreme Court as any other i can think of. For 35 years, he worked as hard as he could in the service of the public to render impartial and fair justice, and he always did his best. It can always be our hope that we are successful as he was in that endeavor. Ben thank you, Justice Kruger. Jeff fisher . Prof. Fisher i would be glad to. Thank you. Thanks for having this event. Thanks to the Bar Association for hosting it. Just hearing Justice Krugers remarks starts a series of memories floating. It floating. Thank you. I am going to try to pick up on a few of the threads Justice Kruger talked about and run them through what he called in his memoirs perhaps his most significant majority opinion he ever authored. It was called printing versus new jersey. It was a case that most laypeople, many lawyers would not know by name. I want to talk about that. The justice itself singled that out. I want to weave together the story of justices, the justices approach to the work and interaction with his colleagues. I wholeheartedly agree one of the defining features of Justice Stevens was his peers independence fierce in terms of his own views and expressing them when they were not otherwise given voice on the court. By the time i clerked for the late justice, he was the lead associate justice with the most than yours he and found himself in a position to do things like a sign opinions or build a coalition. I want to talk about that. Thisentral character in story is Justice Scalia. Thet of people know about special relationship Justice Scalia and Justice Ginsburg had, but Justice Stevens and Justice Scalia also had one in many ways. I remember one day when i was clerking and the justice came back from conference. He said here is how we voted and here is how the opinions look like they will be assigned. Looked like he was going to write the majority opinion. Goinge told us, nino is to do the dissent. I remember the clerks, we sat back knowing what a fierce pen Justice Scalia would have in dissent. It would ok, i can take his heat. Whether agreeing or disagreeing they had a neat relationship with each other. The apprendi doctrine i want to talk about deals with the defendants right not to be punished any more severely than s verdictn jury allows. This is a great way to talk stevenstice independence. When he joined the court in the 1980s, many state legislators on congress started to pass a new sentencing law which took ordinary crimes that would increase a defendants punishment or require mandatory minimum punishment like using a gun was found or harming a victim. These laws were written left it to the judge after the jury found them guilty. This issue first came to the court in 1986. A mandatory minimum of five years in prison. An eight justice decision saying this to not violate the defendants due process rights. The loan dissenter was Justice Stevens. He said if this is ok, legislatures can have a broad crime like assault and have people punished more severely if the judge finds not beyond a reasonable doubt but by preponderance of the evidence someone was injured in a particular way, someone used a gun or dangerous weapon, any number of facts. That was too big an incursion on and notndants liberty being punished any more than he thought the jury should be allowed. Dissent, thenlone again in 1990 when the court dealt with a similar issue under arizonas Death Penalty law. Justice stevens going to paraphrase, it is Something Like this it is not too late in the day for us to recognize the constitution has something to say about a fact that increases somebodys punishment. It was not just in terms of prison. It was allowing somebody to be sentenced by death for a particular crime. Justice stevens wrote a solo insent again in one to 90 1990 but was unable to move his colleagues. Fast forward to 2000 when the apprendi case comes up. It was another one of these basic situations where a basic fact, committing a crime, a hate crime was something that would expose the defendant to extra punishment. Five extra years. Od justice year peri stevens managed to persuade his colleagues including Justice Scalia that the constitution was in fact violated if a judge found a fact or herself that increased independents a defendants sentence. Tot apply the same principle various citizen guideline regimes the state level and federal level, creating a revolution in sentencing practice in this country. And i think what is so extraordinary about that is at a time where we watch the everchanging membership of the court and we have so much conversation when one justice is replaced with another, will that cause the court to reconsider some prior precedent . It was not the changing membership in the court that changed the outcome. It was Justice Stevens own persuasiveness in the building. He brought Justice Scalia and others around. Also were not necessarily inclined to vote with him including Justice Thomas who joined in the majority in a in ay in a in apprendi 54 decision. What does that tell us about Justice Stevens legacy . I dont want to suggest that Justice Stevens was lockstep with his colleagues when it came to how they thought about this. He did it differently. Justice stevens took his guidance differently in this area from the impact on the individual, and the stigma and punishment at stake for the individual whereas Justice Scalia and Justice Thomas in this area have taken their cues from separation of powers perspective and the importance of the jurys participation in our criminal justice process and not having it run around the jury. You find Justice Stevens finding to bring different perspectives together on the court to reach a majority and not by vote trading or haggling but by reason. Court,tevens was on the had ripplerendi has affects not just in criminal sentencing but other areas of the Supreme Courts docket. Even today when either of them on the court. Look back to last term, there was a case last term where Justice Gorsuch and Justice Thomas joined three democratic on throughlives other people. Also there are other areas of law like the right to confrontation, the requirement criminal laws be written with me and is something that will continue to inspire people as they approach cases. I would say this is similar thoughts about how this could relate, but i had that remembrance when he would, especially with the merits case. It was there in front of you and lets take this front to back. I think that, like when you get a new case file in your job or private practice or not there is something about being a lawyer where you have this new matter, each presents its own facts and being able to learn those not how i applied some scheme and make it the fact spin to what i want but what is this case about . There is genuine excitement. This kind of enjoyment of having a new case and seeing each as its own to be valued, not a tool to be used to achieve some final and, it was reflected in us as , weice kruger pointed out split them up three or four ways depending on how many clerks there were. He wanted to know what we thought. Our direction was to prepare them carefully, to give our candidate and independent view. It was his decision. That was a great art of the job theuse he wanted us to take decision that was a serious part of our job and one that meant every case mattered. We did not do bench memos. That would occasionally get some blowback that we had a cushy clerkship compared to others. We like he liked to read the brief. I remember coming back from florida. He would spend time at his home in florida and say he was shaking the sand out. We