Green on Hamdan (Part II): Who’s the Greatest Clerk Ever?

wake.jpgWe’ve invited my colleague, Temple Professor Craig Green, to comment for us on Hamdan. (More introduction here.)

He has provided two different posts for us. Here is the second:

John Paul Stevens: Best Law Clerk Ever

One “lighter” note about Hamdan.

Recently, a few folks (i.e., John Ferren, Joseph Thai, Diane Amman (74 Fordham L.R.), and li’l old me ) have struggled to draw attention to Wiley Rutledge, for whom Stevens clerked on the Court many years ago. Rutledge confronted lots of “executive detention” issues in World War II, and that experience profoundly affected the pre-Justice Stevens.

Before yesterday, the most remarkable episode in this intergenerational overlap was the fact that Stevens wrote the Rasul majority – extending habeas jurisdiction to GTMO detainees – which vindicated a Rutledge dissent that law-clerk Stevens helped draft almost sixty years earlier. Pretty crazy right?

Well, we now know that the beat goes on. The most “famous” opinion Rutledge ever wrote (no smirking please) was a dissent attacking General Yamashita’s conviction before a procedurally flawed military commission. Yesterday, Stevens and the Court overturned that precedent almost casually. One minute, Stevens explained that Yamashita “has been seriously undermined by post-World War II developments” (not including any S.Ct. decisions, mind you). The next, the “notorious” Yamashita decision “has been stripped of its precedential value.” Just like that.

I think future generations won’t fully appreciate what Stevens accomplished in Hamdan, at least till the conference notes come out. The case was extraordinarily hard, and Stevens assigned himself the opinion, despite knowing that: (i) very talented dissenters would level a slew of pretty good arguments against him, and (ii) Kennedy’s vote has not proven, shall we say, 100% reliable in such cases. Stevens had to be strong enough to fend off the dissents, but not too strong to hold a possibly wobbly fifth vote.

In my own melodramatic way, i think Stevens’s success in Hamdan represents his most important work in thirty years of distinguished service at the Court. The passage of time, combined with the normative power of the actual, may lead us to someday forget how unexpected, even astonishing, Stevens’s accomplishment is. But one may be sure that Rutledge and his generation would not. Never before has a Supreme Court clerk succeeded in converting his former boss’s dissents to majority opinions – much less with such dramatic effect. So let’s celebrate for JPS – the greatest law clerk in U.S. history. Then we’ll just have to wait to see if Chief Justice Roberts gets his own shot at the title . . .

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4 Responses

  1. formerSCOTUSclerk says:

    Craig writes:

    The case was extraordinarily hard, and Stevens assigned himself the opinion, despite knowing that: (i) very talented dissenters would level a slew of pretty good arguments against him, and (ii) Kennedy’s vote has not proven, shall we say, 100% reliable in such cases. Stevens had to be strong enough to fend off the dissents, but not too strong to hold a possibly wobbly fifth vote.

    This isn’t a very helpful perspective, I fear. JPS doesn’t care one bit about whether persuasive arguments are on the other side; it’s not like he is a lawyer’s lawyer objectively looking for the best argument. He had a result he wanted to reach, and he reached it, and presumably no one on his side really cared whether it was a persuasive legal argument or not. And notably, JPS actually didn’t keep AMK’s vote for the whole enchilada.

  2. Eh Nonymous says:

    formerSCOTUSclerk:

    You didn’t tell us if you were a clerk for O’Connor, and thus extremely sensitive to the context of the case at hand, or if you were a clerk for Thomas, and thus absolutely committed to overturning wrong precedent, no matter how deeply rooted – unless that precedent merely harms civil plaintiffs and criminal defendants. Or possibly you were a lawyer’s lawyer, like Roberts and his clerks. Or possibly you were a clerk for Scalia, who could care less about persuasiveness of his dissents, so long as he has an opportunity to notch up the level of incivility on the court to which he has a lifetime appointment.

    Not that it’s germane to the substance of your comment.

    JPS’s great strength in majority opinions, I feel, is that his legal reasoning is what he uses to rebut dissents. He seldom drops footnotes castigating the dissents for their (typically) weak-minded cavils. 🙂 That’s a job for concurrences.

    When you say that a judge in the majority doesn’t care a whit about the dissent, you are saying that the holding need not make apologies for those who are catcalling from the sidelines. The sidelined judges may have persuasive reasoning, but they are not espousing the Law – unless you are a lawyer’s lawyer type, and believe in a Platonic Ideal of Law.

  3. Steve Vladeck says:

    Craig — Although I’m delighted (and on record as such) at the result here, and at the work of Justice Stevens (who may have won the battle on Ahrens in Rasul only to lose the war in Padilla), I wonder if you’re being a bit too quick-on-the-trigger vis-a-vis Yamashita… You would surely know better than I, but I doubt the late Justice Rutledge would have been content even with a “duly authorized,” “properly constituted” military commission. I always understood Rutledge as preferring that part of Milligan that wasn’t unanimous — that not even _with_ Congress could the government so quickly subject alleged enemies to military process. What I see in Hamdan, in contrast, is the unanimous part of Milligan — the President can’t do it without more from Congress… An important statement, to be sure, and one with which Justice Rutledge would surely have agreed, but I’m not sure it’s quite the vindication of Rutledge’s wonderful dissent…

    Perhaps time will tell.

  4. Bruce says:

    He had a result he wanted to reach, and he reached it, and presumably no one on his side really cared whether it was a persuasive legal argument or not.

    Now that’s a helpful perspective.