Justice Stevens’ memoir offers intriguing Court insights

Monday, October 10, 2011

Retired Supreme Court Justice John Paul Stevens has penned an intriguing memoir called Five Chiefs (Little, Brown and Co., 2011) describing the Court as headed by the five Supreme Court chief justices with whom he served since law-clerking for Justice Wiley Rutledge. These five chiefs were Fred Vinson, Earl Warren, Warren Burger, William Rehnquist and John G. Roberts Jr.

Stevens occasionally references First Amendment decisions and issues in his book. One of the most interesting points concerns Chief Justice Burger’s pattern of assigning cases involving the First Amendment. Stevens writes:

“For example, cases raising First Amendment issues are typically the subject of extensive coverage in the press. I had the impression that Warren Burger would assign the opinions in such cases to himself when the First Amendment claim was vindicated but to Byron White when the opinion would receive a hostile reception on the editorial pages.”  (p. 236)

The chief justice is often called “first among equals.” Although his vote counts the same as the other eight justices’, the chief has additional duties and powers. One is the ability to assign which justice writes the majority opinion in case when the chief is in the majority.

Burger did keep several seminal First Amendment opinions for himself that vindicated the First Amendment claimant. For example, he wrote the Court’s decision in Miami Herald Publishing Co. v. Tornillo (1974), in which the Court unanimously struck down a Florida law requiring newspapers to give candidates a right to reply to editorials  written in opposition to them. The decision protected the press’s right of editorial autonomy free from government control.

Similarly, Burger wrote the Court’s unanimous opinion in Nebraska Press Association v. Stuart (1976), ruling that a trial judge erred in issuing a gag order on the press during a murder trial. Burger famously wrote that “prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights.”

Stevens’ assessment with regard to Burger’s assigning cases to Justice White has credence. Burger assigned White to write the decision in Branzburg v. Hayes (1972), in which the Court ruled that journalists had no constitutional right to avoid a subpoena seeking the identity of their confidential sources.

Burger also assigned White the opinion in Zurcher v. Stanford Daily (1978). In that case, the Court said the First Amendment did not prohibit law enforcement officials from conducting a search of a newsroom with a warrant.

Chief justices should make assignments impartially — something Stevens credits his late and longtime colleague William Rehnquist as doing. Even though he disagrees with some of Rehnquist’s opinions, he mentions several times  that Rehnquist acted with complete impartiality in his duties.