A Supreme Court Justice & A Military Officer

"The morality of military action became a lifelong preoccupation."
- Jeffrey Toobin describing Justice John Paul Stevens of the Supreme Court of the United States

I just finished reading Five Chiefs: A Supreme Court Memoir by Justice John Paul Stevens. The wife and I arrived in Washington DC last night to attend his book signing, so I figured I should read it before I humbly ask the Justice to sign a copy. What I discovered reading Five Chiefs was that it is as much the work of a military officer, as it is the work of a judicial legend.

In his book, the Justice never fails to draw the connection between those who served their country while wielding the law, and who also served in a military uniform wielding force. Early on he describes the nation's most revered Chief Justice of the Supreme Court with these words:

In 1775, before the Declaration of Independence was signed, nineteen-year-old John Marshall joined a group of Virginia militiamen that was called into action by Colonel Patrick Henry, commander of Virginia's provisional army, and engaged in combat with British troops. He served as an officer under George Washington at Valley Forge during the bitter winter of 1777-1778. His martial accomplishments were followed by distinguished work in the private practice of law, as a member of the Virginia convention that voted to ratify the Constitution, as a United States congressman from Virginia, and as a diplomat. While those credentials clearly qualified him to become our fourth chief justice, it was his work once in office that made him our Court's greatest leader.

In his book, Justice Stevens points out that Chief Justice Vinson had served in the Army in World War I, and that his good friend Art Seder (who clerked for Justice Vinson) was a B-17 pilot who had flown twenty-five missions over Germany. He mentions that Chief Justice Vinson had another law clerk, Byron White, who would himself later go on to become a justice of the High Court. We learn that Byron White had been a Naval intelligence officer who had braved kamikaze attacks in the Pacific. Still later, Justice Stevens opens his chapter on Chief Justice William Rehnquist with, "Bill Rehnquist was a meteorologist in the Air Force during World War II."

Justice Stevens' deep connection to the military is further revealed in his book when he introduces his two founding law partners from his law firm days. Justice Stevens relates that one saw combat as an Army officer in World War II. The other partner served on a ship that landed grounded forces during the war, and who later played football for Notre Dame. The Justice even mentions the service of the Fighting Irish's football coach. The coach saw action on the beaches of Normandy.

Justice Stevens is not just a judicial legend who served on our nation's Highest Court for the third longest period in American history, he's also a military officer who himself served during World War II.

He is also a pilot who lived during the early days of American aviation (he once received a dove as a gift from Charles Lindbergh). In his book he describes the congressional confirmation process before he took his place on the High Court. In one section he writes:

I particularly enjoyed my conversation with Senator Barry Goldwater, not just because he had been a candidate for the presidency in 1964 but also, and more important, because he was a pilot who enjoyed talking about the various military aircraft that he had flown. I received the impression that he decided to vote for me when he learned that I had my own plane.

His book provides not only a glance into his jurisprudence and his views of our beloved Constitution, but also frequently reminds the reader of his love of aviation and the undeniable impact his military service had upon his life and his approach to the law. One can agree with his particular legal views or not, but the fact that he deeply cared and sacrificed for America is undeniable.

He took the oath to defend the Constitution against enemies foreign and domestic, first as an executive intelligence officer in the Navy. As a Naval officer, Lieutenant Stevens was awarded the bronze star for cracking the code that led to the targeted assassination of Admiral Yamamoto. In an article for The New Yorker, Jeffrey Toobin writes:

In April, 1943, a coded message came across Stevens’s desk—“one eagle and two sparrows, or something like that,” he said. Stevens knew the transmission meant that an operation based on intelligence from his station had been a success. American aviators had tracked and shot down the airplane of Admiral Isoroku Yamamoto, who was the architect of the Japanese attack on Pearl Harbor and the leader of Axis forces in Midway. Stevens was a twenty-three-year-old lieutenant, and the mission, essentially a targeted assassination, troubled him. “Even at the time, it seemed to me kind of strange that you had a mission that was intended to kill a particular individual,” he told me. “And it was an individual who was a friend of some of the Navy officers.” (Before the war, Yamamoto had trained with the U.S. Navy and studied at Harvard.) Ultimately, Stevens concluded that the operation, which was approved by President Roosevelt, was justified, but the moral complexity of such a killing, even in wartime, stayed with him. “It is a little different than your statistics about so many thousands of highway deaths—that doesn’t mean all that much,” he said. “But if somebody you know is killed, you have an entirely different reaction.” The morality of military action became a lifelong preoccupation.

One of Justice Stevens' former clerks, Diane Amman, also discusses how the Justice as a young officer was troubled to discover that planners were not deliberate in their decision to go along with the plan to target Yamamoto. The Justice touches on an important theme. As officers of the executive or of the judiciary, who both wield the lethal machinery of the state, it is imperative that we not blindly take action without deeply deliberating on those actions. We are members of a profession that requires a level of education, and is bound by law and has an ethical dimension. Expedience can not be allowed to excuse sacrificing the rule of law. Our law is far too important.

The Justice provides an excellent illustration of just why the rule of law is more important than expediency, even when breaking or bending the law might seem the appropriate thing to do given the circumstances. In his book he discusses the snail darter, a tiny fish that was on the endangered species list, and which was the cause for asking the High Court to stop the construction of a dam that threatened it. The building project had already cost millions of dollars, and the question before the court was whether or not it made sense to stop the project for this insignificant little fish. Justice Stevens recalls that Chief Justice Warren Burger wrote an "excellent opinion" that "explained why the investment in the dam was less important than obeying a congressional command to protect the snail darter." The Justice includes a quotation from that opinion, quoting Sir Thomas More on the importance of the rule of law:

The law, Roper, the law. I know what's legal, not what's right. And I'll stick to what's legal....I'm not God. The currents and eddies of right and wrong, which you find such plain-sailing, I can't navigate, I'm no voyager. But in the thickets of the law, oh there I'm a forester... What would you do? Cut a great road through the law to get after the Devil?... And when the last law was down, and the Devil was turned round on you - where would you hide, Roper, the laws all being flat?... This country's planted thick with laws from coast to coast - Man's laws, not God's - and if you cut them down... d'you really think you could stand upright in the winds that would blow then?... Yes, I'd give the Devil benefit of law, for my own safety's sake.

Justice Stevens' concern for the rule of law is evident in other sections of his book, where it combines with what Toobin deemed his preoccupation with the morality of military action. In a critique of opinions by Chief Justice Harlan F. Stone, Stevens writes that:

...his two most significant wartime opinions - Ex parte Quirin, rejecting challenges to their death sentences by putative German saboteurs who had voluntarily surrendered to the FBI, and In re Yamashita, upholding a military tribunal's death sentence imposed on a Japanese general because of atrocities committed by soldiers under his command - may have bent the rule of law in response to perceived military necessity. As Justice Antonin Scalia correctly observed of Ex parte Quirin in his fine dissenting opinion in Hamdi v. Rumsfeld (2004), "The [Quirin] case was not this Court's finest hour."

It is my opinion that in our modern world, with our great many security challenges, that Justice Stevens stands as a gigantic role model to all military officers. His example reminds us of the need to be deliberate as we exercise the enormous responsibilities entrusted to us. He writes in his book, "In our democracy, issues of policy are determined by majority vote; it is the business of legislators and executives to be popular. But in litigation, judges have an overriding duty to be impartial and to be indifferent to popularity." In my opinion, his example applies to military officers as much as it does to federal judges. Both are required by the Constitution to take an equally binding oath to that same document, and both command the violent machinery of the state. Personal popularity, advancement, and personal convenience must not be allowed to interfere with that solemn burden. Those of us serving should strive to emulate Justice John Paul Stevens' example; legend of the judiciary, and faithful military officer.

Update: just got back from the Justice's talk with Judge Tatel. It was excellent. To tie into the theme of this blog post, the Justice did mention tonight that he thought diversity of background in Supreme Court justices was a good thing for the Court, instead of just Ivy League educations, and specifically mentioned military service, which the High Court no longer has since his retirement.