"Notwithstanding the Supreme Court’s rulings on First Amendment protections, the Court has never held that American Flag desecration conducted in a manner that is likely to incite imminent lawless action..."

"... or that is an action amounting to 'fighting words' is constitutionally protected. See Texas v. Johnson, 491 U.S. 397, 408-10 (1989). My Administration will act to restore respect and sanctity to the American Flag and prosecute those who incite violence or otherwise violate our laws while desecrating this symbol of our country, to the fullest extent permissible under any available authority.... The Attorney General shall prioritize the enforcement to the fullest extent possible of our Nation’s criminal and civil laws against acts of American Flag desecration that violate applicable, content-neutral laws, while causing harm unrelated to expression, consistent with the First Amendment...."

From President Trump's executive order, "Prosecuting Burning of the American Flag."

Does that violate the First Amendment even though it explicitly limits itself to what is "consistent with the First Amendment"?

Here's Texas v. Johnson. 

I feel like rereading the dissent:

"[Ketanji Brown] Jackson is not alone among Justices in telling her life story."

"There is a long tradition of memoirs, notably William O. Douglas’s 'Go East, Young Man,' which is famously colorful and perhaps factually dubious, and his 'The Court Years'; 'The Memoirs of Earl Warren,' published posthumously; Sandra Day O’Connor’s 'Lazy B,' written with her brother, about growing up on a ranch... and John Paul Stevens’s 'The Making of a Justice: Reflections on My First 94 Years'.... [Ketanji Brown Jackson's new memoir] belongs to a modern mini-genre of personal memoirs written much earlier, by sitting Justices. Clarence Thomas pioneered the form, with 'My Grandfather’s Son,' which appeared in 2007, sixteen years into his tenure... followed by Sonia Sotomayor, with 'My Beloved World,' in 2013, four years into hers. The pace has picked up. Brett Kavanaugh and Amy Coney Barrett have books in the works, too. It is almost as if, along with the judicial robes and clerks, newly confirmed Justices are issued book contracts. The advances alone may be the point. Thomas got a million and a half dollars. Sotomayor has built a franchise... that has earned her close to four million dollars. Barrett’s deal, worth a reported two million, was the subject of an open letter of protest.... Jackson’s contract is not public... The salary for an Associate Justice is about three hundred thousand dollars; there are caps on how much the Justices are allowed to earn for outside work, but book earnings are exempt."

Writes Amy Davidson Sorkin, in "What Can Memoirs by Supreme Court Justices Teach Us? We’re primed to read Justices’ accounts of their lives for clues to their jurisprudence. Should we?" (The New Yorker).

This seems to call for the old Samuel Johnson quote: "No man but a blockhead ever wrote except for money."

And to answer the question in the article title: No. 

"When Justice Stevens wrote his opinion in Chevron, he meant to solve a knotty problem, but he did not mean to produce a major ruling, or even to make any change in the law."

"Justice Harry Blackmun’s private papers, which are now public, show that members of the Court found the case to be highly technical and difficult to decide.... Revealingly, Chevron had hardly any influence on the Supreme Court in its first years. Everything changed after Justice Scalia joined the Court in 1986 and became Chevron’s champion, urging that it inaugurated a new approach for courts to apply in reviewing the interpretations of administrative agencies. Justice Stevens repeatedly disagreed with him; he insisted that Chevron did not make any big change in the law, and that questions of law were for courts, not agencies. By the early 1990s, Scalia had prevailed: whenever an agency’s interpretation of a congressional enactment was at issue, Chevron was widely understood to give the administrative state a lot of room to maneuver. If you worked at a federal agency at the time, Chevron was your best friend." 

Writes Cass Sunstein in "Who Should Regulate? Cass R. Sunstein The question of whether federal agencies or the courts should have the right to interpret legislation may seem technical, but it significantly affects the power of the government" (NYRB)(reviewing "The Chevron Doctrine: Its Rise and Fall, and the Future of the Administrative State" by Thomas W. Merrill).

For those who are uninitiated and yet not utterly bored — a small group, I'm thinking — the Chevron case provides — in Sunstein's words — "that when the language of statutes enacted by Congress is ambiguous, federal agencies are entitled to interpret it as they see fit, as long as their interpretations are not unreasonable."

Don't miss this casual phrase: "Justice Harry Blackmun’s private papers, which are now public..."  Was that treacherous leakage? The leakage was by Blackmun, of course, but I'm still asking if making all those notes and drafts public was an example of "the gravest, most unforgivable sin." Shouldn't we have access to these materials to understand why these decisions come out the way we do? Why should we be controlled by the careful wordings and omissions of the final version?

And I see that Chief Justice Roberts referred to Blackmun's papers in the oral argument about overruling Roe last December!

Joan Biskupic wrote about it last December, right after the oral argument, in "Why John Roberts cited the private papers of the justice who wrote Roe v. Wade" (CNN):

"We at the Folger revered Justice Stevens for his independent-mindedness. But his denial of Shakespeare’s authorship is founded on a conspiracy theory..."

"... that no reputable Shakespeare scholar countenances. The historical evidence of Shakespeare’s career as an actor and a playwright—including praise of his greatness by his contemporaries—is clear and undeniable. Those interested in the question should consult Shakespeare Documented, the Folger’s authoritative Web site. While we at the Folger will remember Justice Stevens fondly, we strongly disavow his wrongheaded opinions about Shakespeare."

Letter to the editor in the new issue of The New Yorker.

The letter is a reaction to "Justice Stevens’s Dissenting Shakespeare Theory/Among the late Supreme Court Justice’s controversial opinions: a belief that the Bard’s works were actually written by Edward de Vere, the seventeenth Earl of Oxford" (where we learn that Scalia shared the same discredited belief.) Also in The New Yorker, "An Unexpected Letter from John Paul Stevens, Shakespeare Skeptic," by the author of "Contested Will," James Shapiro, who interacted with Stevens on the subject and wrote:

... I was curious about what led so wise a jurist to embrace a conspiracy theory—and that’s the only word for it, since there’s not a shred of documentary evidence linking Oxford to Shakespeare’s plays, only speculation and surmise. To look back on my exchange with Stevens is a reminder of how firmly conspiracy thinking has taken hold in America, from anti-vaxxer propaganda to the belief that the moon landing was faked....

The Bible of the Oxfordian movement was J. Thomas Looney’s “Shakespeare Identified,” published in 1920. Stevens knew from having read my book that Looney, a member of the cultish Church of Humanity, had landed upon Oxford as an alternative candidate because the Earl’s life (inventively reimagined) dovetailed with Looney’s own nationalist and reactionary views. Looney’s interest in Shakespeare was more political than literary: he despised modernity and was profoundly anti-democratic. The plays of Shakespeare, understood as the works of an aristocrat, offered Looney a guide for a wished-for restoration of a repressive feudal regime, in which everyone knew his or her place....

Through a series of letters, Stevens doggedly stuck with his arguments and Shapiro refrained from writing about what he clearly regards as nonsense until after Stevens died.

Justice John Paul Stevens has died.

He lived to the age of 99.

Linda Greenhouse has a long obituary in the NYT. Excerpt:

When he retired in 2010 at the age of 90, Justice Stevens was the second-oldest and the second-longest-serving justice ever to sit on the court. Oliver Wendell Holmes Jr. was about eight months older when he retired in 1932, and William O. Douglas had served 36 years (1939-75)....

Justice Stevens served for 35 years.

Societal debates over the rights of gay men and lesbians, the role of race, private property rights, environmental regulation and the separation of church and state also made their way onto the Supreme Court’s docket, and Justice Stevens, a soft-spoken Republican and former antitrust lawyer from Chicago, was as surprised as anyone to find himself not only taking the liberal side but also becoming its ardent champion....

[In his early years on the Court his] reputation was that of a very smart, nonideological, slightly quirky loner who, if a case was decided by a vote of 8 to 1, was as likely as not to be the solitary dissenter, caring neither to lead nor to follow....

How Justice Stevens leveraged Trump.

THE SECOND AMENDMENT WILL NEVER BE REPEALED! As much as Democrats would like to see this happen, and despite the words yesterday of former Supreme Court Justice Stevens, NO WAY. We need more Republicans in 2018 and must ALWAYS hold the Supreme Court!

— Donald J. Trump (@realDonaldTrump) March 28, 2018

John Paul Stevens, the 97-year-old former Supreme Court Justice, writes "Repeal the Second Amendment."

It's a NYT op-ed.

Justice Stevens says that the student demonstrations last Saturday are "a clear sign to lawmakers to enact legislation prohibiting civilian ownership of semiautomatic weapons, increasing the minimum age to buy a gun from 18 to 21 years old, and establishing more comprehensive background checks on all purchasers of firearms."

But the students should ask for more — send more clear signs — and "demand a repeal of the Second Amendment." Usually, advocates of gun control tend to give assurances that they're not out to repeal the Second Amendment. A forthright demand for a repeal of the Second Amendment would wreck those assurances and elevate the pro-gun side, which could credibly intensify its rhetoric with reality-based anxiety that they are coming to take away your constitutional rights. If they can take away your Second Amendment rights — if the Bill of Rights is on the chopping block — they may come for your freedom of religion next, they can take away your freedom of speech, you right to be free of unreasonable searches and seizures — whatever they like, whatever they think stands in their way.

The op-ed quickly shifts to a repetition of the argument made by the losing side in the 2008 Supreme Court case of District of Columbia v. Heller and set out in Justice Stevens's dissenting opinion. Stevens could have written an op-ed simply saying that Heller is bad and should be overruled. Then he wouldn't be directly threatening our constitutional rights, just informing us that we're mistaken about the existence of one of them. Indeed, we would be "overturning that decision" with a constitutional amendment:

[Heller] has provided the N.R.A. with a propaganda weapon of immense power. 

Rights as propaganda. Look around. How often do we use "rights" as propaganda? That question used to dominate discussions within legal academia. You can get up to speed on what I lived through in the 1980s by reading "legal theory: critical theory/Critical Perspectives on Rights... The Critique of Rights." I'll just list the 5 propositions discussed at that link, which goes to a Harvard website:

1. The discourse of rights is less useful in securing progressive social change than liberal theorists and politicians assume.
2. Legal rights are in fact indeterminate and incoherent.
3. The use of rights discourse stunts human imagination and mystifies people about how law really works.
4. At least as prevailing in American law, the discourse of rights reflects and produces a kind of isolated individualism that hinders social solidarity and genuine human connection.
5. Rights discourse can actually impede progressive movement for genuine democracy and justice.

Back to Justice Stevens:

Overturning [Heller] via a constitutional amendment to get rid of the Second Amendment would be simple and would do more to weaken the N.R.A.’s ability to stymie legislative debate and block constructive gun control legislation than any other available option.

I had to go back to the NYT webpage to recheck the language even though I knew I copied and pasted it. I was shocked at "get rid of the Second Amendment." Get rid of. Not "repeal." Get rid of. Not get rid of Heller, but get rid of the Second Amendment.

And it would be simple!? That's just a weird thing to say. It's not simple at all to amend the Constitution. Not only do you need 2/3 supermajority in both Houses of Congress, you are defeated if one house in the legislature of 13 states says no. This is why I was so damned sure in 2004 that George Bush's anti-gay-marriage amendment would never become part of the Constitution.

It would not be simple to get rid of the Second Amendment through the amendment process. It would be virtually impossible.

And the idea that you'd excise a right from the Constitution to "weaken" a lobbying group that "stymie[s] legislative debate" is repellant. Notice the motive of restricting speech. A group speaks too powerfully; we need to change the Constitution.

Stevens concludes:

That simple but dramatic action would move Saturday’s marchers closer to their objective than any other possible reform. 

We should remove rights from the Constitution because it would be dramatic and because it would move marchers closer to their objective??

I am very sad to see Justice Stevens writing like that, but he's made this proposal before. Back in 2014, he published a not-well-received book — "Six Amendments: How and Why We Should Change the Constitution" — that reframed various old dissenting opinions of his as proposals to amend the Constitution. Of course, the Second Amendment was in the set of six.

What's new is that his proposal to get rid of the Second Amendment is tied to the student protests: Let's seize upon their youthful enthusiasm, let's weaponize their passion, and use it to get somewhere we've always wanted to go.

I like kids as much as the next guy, but I'm not on the follow-the-kids bandwagon, especially when it comes to the value of respecting the American tradition of constitutional rights.

"It's a paler place without" Scalia, said Justice Ginsburg.

"Paler. Because he was a wonderful storyteller. He had an uncanny ability to make even the most somber judge smile."

Also:

When asked about Hillary Clinton potentially stacking the court with liberal justices, Ginsburg said she resisted "the notion that, if you are a Democrat, then you are 'liberal.'"

"Just think of John Paul Stevens appointed by President Ford, then Souter appointed by the first President Bush," she said. "They were not 'conservative.'"

I'd like to see the whole quote, but 2 examples of Republicans who turned out not to be conservative does not make me think it's at all likely that Democrats will turn out not to be liberal. When's the last time that happened? Felix Frankfurter?

Justice Scalia arrived late to work yesterday.

"Just after 10:10 a.m., after the argument had been underway for four or five minutes, the center curtains stirred behind the Chief Justice, and Justice Scalia moved a short distance to the stage, or to his seat on the bench (which is often his stage, of course). A few minutes later, an aide brought his silver coffee go-cup and some case materials. At 10:21, Justice Scalia felt sufficiently up to speed to chime in. 'Can I ask something about this,' he said to the lawyer before him. The solicitous tone was uncharacteristic, and reminiscent of the courtly way that now-retired Justice John Paul Stevens would enter an argument before asking a razor-sharp question. Before too long, with a few sips of his coffee, Justice Scalia was back to himself, interrupting the lawyers to grill them without asking their permission."

That's the end of the (surprisingly long!) essay at SCOTUSblog about what Supreme Court observers experienced as the dramatic absence of Justice Scalia on a morning when 2 of his opinions were announced. Chief Justice Roberts took over the reading of the announcements, noting only that Justice Scalia had asked him to do so. What thoughts raced through the heads of the observers before they got the word that Justice Scalia was — how mundane! — stuck in traffic?

It's a good thing the forebears forced forbearance.

Cass Sunstein has a New York Review of Books review of Justice Stevens's book plumping for amending the Constitution to reverse 6 doctrines he abhors. The book is titled "Six Amendments: How and Why We Should Change the Constitution," and the book review's spiffier title is  "The Refounding Father."

Words that don't appear in the text of Sunstein's review: "framer," "framers," "founder," "founders," "father," "fathers," "forefather," "forefathers." It's a marvel how Sunstein did that. He says "authors of the Constitution" once, and "the founding generation" twice. He never says "forebears" but he does say "forbearance" a lot, referring to the way Americans have refrained over the years from amending the Constitution (in part, because the framers made the Constitution so hard to amend).

Here's my favorite "forbearance" paragraph:

You might think that the Constitution would be better if one or more [amendments] were part of it, but you might agree that the general pattern of forbearance is also in the national interest. You might even think that the founding generation was wise to make forbearance more likely, if only because of the importance of constitutional stability and the risk of harmful or ill-considered amendments. There could well be strong national majorities in favor of some amendments that Justice Stevens and civil libertarians would deplore, while national majorities would be exceedingly difficult to muster for some of the amendments that he proposes — a point that might strengthen the case for forbearance. And if you approve of forbearance, you might be inclined to reject most or even all of Stevens’s proposals for constitutional change, even if you think that on most or even all of them, he is right as a matter of public policy.

Justice Stevens gets big traffic at WaPo with the specious theme of "fixing" the Constitution by adding a few words here and there.

The retired Justice has a new book called "Six Amendments: How and Why We Should Change the Constitution," and the WaPo op-ed is titled "Justice Stevens: The five extra words that can fix the Second Amendment." The op-ed went up yesterday and there are already nearly 3,000 comments. It's also #1 in "The Post Most" list in WaPo's sidebar. ("Most" what? Most clicked on? Most emailed? Most favored by whoever made the list?)

I'm only skimming the op-ed and reading the table of contents in the book, but how can this be any more than a literary device restating the Justice's old dissenting opinions as text to be inserted in the clauses of the Constitution that the majority interpreted in a manner he thinks is wrong? It's much too hard to amend the Constitution for any of this to be practical, and I doubt that Justice Stevens has any general serious enthusiasm for "fixing" the Constitution this way. If he gets to "fix" the Second Amendment — his text would cancel the individual right to bear arms — he's invigorating the movement to "fix" the Fourteenth Amendment by making the unborn into "persons." There's no end to this "fixing."

I remember listening to the agonizing of some of my colleagues over the Federal Marriage Amendment. My response was always: "That's not going to happen." Obviously not. Remember the old Flag Desecration Amendment? Didn't happen. If ever these things get anywhere near being taken seriously, our traditional, deep-rooted respect for the original document stirs to life.

Here's one iteration of that respect:

"No one would be in trouble over this scandal if only David Corn had the news judgment to recognize a nonstory."

Says James Taranto. The distinction between this bland chat about things Ashley Judd wrote in her memoir is nothing like the explosive conversation in Bartnicki v. Vopper, the Supreme Court case that said "a stranger's illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern."

[M]embers of the Pennsylvania State Education Association discussed violently retaliating against school board members who were their adversaries in collective-bargaining negotiations. A quote from the tape: "If they're not gonna move for three percent, we're gonna have to go to their, their homes.... To blow off their front porches, we'll have to do some work on some of those guys...."

In Bartnicki, Justice Stevens (joined by Justices O'Connor, Kennedy, Souter, Ginsburg, and Breyer) says there's "a conflict between interests of the highest order — on the one hand, the interest in the full and free dissemination of information concerning public issues, and, on the other hand, the interest in individual privacy and, more specifically, in fostering private speech." But: "The normal method of deterring unlawful conduct is to impose an appropriate punishment on the person who engages in it." And: "It would be quite remarkable to hold that speech by a law-abiding possessor of information can be suppressed in order to deter conduct by a non-law-abiding third party." 

Justice Stevens rejects the idea that legal expertise is the reason why judges have the last word on the meaning of the Constitution.

The retired Justice is reviewing Sanford Levinson's new book "Framed: America’s Fifty-One Constitutions and the Crisis of Governance."  Levinson has offered 3 different reasons why judges have this role in our system of separated powers:

[F]irst, that they are experts in the law in the same way that rocket scientists have a field of expertise; second, that they are gifted with exceptional wisdom; or third, that the terms of their office liberate them from “political” constraints. He correctly rejects the first answer because the number of dissenting opinions belies the suggestion that there is only one permissible answer to the kind of question that courts consider. He correctly rejects the second answer because he agrees with Justice Holmes that “the life of the law is not logic, but experience.” While he concludes that the third answer depends on one’s views about the empirical consequences of election of judges, in my judgment, he accurately identifies the controlling criterion in this sentence: “Life tenure and the liberation from political accountability would remove certain incentives that lead ordinary leaders to betray the public good.”

How can the Supreme Court escape from the perception that it's partisan?

Lawprof Barry Friedman is working on the theory that people have lost trust in the Court (or so the polls show) because they perceive the Court as political. (Friedman stresses that politics is different from ideology, ideology being something one actually believes in.)

Okay, so if the Court cares about the public's disapproval and wants to do something about it — which would be, ironically, political — then the Court should work to deflect the perception that it is political.

Well, then, the question becomes why do people perceive the Court as political? One answer is: Because it is political. In which case, people should be congratulated for their perceptiveness. Nice going, people. You are not dupes. But that's me saying that.

What Friedman is saying is that certain cases are making people see the Court as political. What cases?

A New Yorker article about Supreme Court history makes a big error.

Says lawprof David Bernstein — who's written a great book that covers the era of history in question:

[Jill] Lepore writes, “In 1910, Taft appointed Hughes to the Supreme Court, where, as a champion of civil liberties, he often joined with Holmes in dissent.”...

For decades Holmes’s liberal acolytes and fans argued to the contrary, but it’s well-established at this point that he was no champion of civil liberties. Holmes did eventually become a defender of freedom of speech, but that didn’t occur until after Hughes quit the Court to run for president in 1916.

Much more detail at the link.

And here's the New Yorker article. For all the history, it's really another one of those articles — like the Jeffrey Rosen TNR essay we talked about yesterday — trying to shape public opinion around the potential Supreme Court opinion that strikes down the Affordable Care Act. Like Rosen, she says:

What people think about judicial review usually depends on what they think about the composition of the Court. When the Court is liberal, liberals think judicial review is good, and conservatives think it’s bad. This is also true the other way around....

And like Rosen, she ends with an embrace of the value that law and politics should be separate — even as, like Rosen, she nudges us to think that it's the conservatives on the Court who pose the threat:

The separation of law from politics... has proved elusive. That’s not surprising—no such separation being wholly possible—but some years have been better than others. One of the worst was 2000, when the Court determined the outcome of a disputed Presidential election. The real loser in that election, Justice John Paul Stevens said in his dissent in Bush v. Gore, “is the Nation’s confidence in the judge as an impartial guardian of the rule of law.”...

Federally, few rulings have wreaked such havoc on the political process as the 2010 case Citizens United v. Federal Election Commission, whereby the Roberts Court struck down much of the McCain-Feingold Act, which placed restrictions on corporate and union funding of political campaigns. Stevens, in his dissent, warned that “a democracy cannot function effectively when its constituent members believe laws are being bought and sold.”

That, in the end, is the traffic to worry about. If not only legislators but judges serve at the pleasure of lobbyists, the people will have ceased to be their own rulers. Law will be commerce. And money will be king.

That's a strange way to end it, since federal judges are appointed and don't have to run for election. The independence of the federal judiciary isn't threatened by Citizens United. The independence of the federal judiciary, if anything, produced Citizens United — in which the Supreme Court, stocked with election-free judges, struck down a federal statute that was an effort by elected officials to control who gets to speak during elections.

And since we're talking about New Yorker fact-checking, I don't like: "the McCain-Feingold Act, which placed restrictions on corporate and union funding of political campaigns." Citizens United struck down a restriction on spending on one's own speech. It wasn't about contributions to political campaigns, i.e., funding.

"You're a Supreme Court Justice. I'm not. That gives you the right to judge things. That's very convenient."

Stephen Colbert interviews Justice Stevens:

Justice Stevens writes of his "extreme distaste for debates about campaign financing."

That's from his new book "Five Chiefs: A Supreme Court Memoir," and it refers to his experience immediately upon his ascent to the Supreme Court in 1976, when the Justices were deciding Buckley v. Valeo. He goes on:

That distaste never abated, and I have felt ever since that the Court would be best served by inserting itself into campaign finance debates with less frequency. 

The Court would be best served, eh? The questions have to do with what the Constitution says about  freedom of speech, so one must wonder why he'd think in terms of what serves the Court best as opposed to what the Constitution means or at least what serves the people best.

That view may have had an impact on the unusually long dissent that I wrote during my last term on the Court against the Court’s overreaching in the Citizens United case...

In addition to my overriding hostile reaction to the subjects discussed in Buckley, I also recall puzzlement about why the Court failed to endorse the position expressed by Justice White in his dissent. He effectively explained why the distinction between limitations on contributions (which the Court upheld) and the limitations on expenditures (which the Court invalidated) did not make much sense, and why the Court should have respected the congressional judgment that effective campaigns could be conducted within the limits established by the statute. Time has vindicated his prediction that without “limits on total expenditures, campaign costs will inevitably and endlessly escalate.” He thought it quite proper for Congress to limit the amount of money that a candidate or his family could spend on a campaign in order “to discourage any notion that the outcome of elections is primarily a function of money.”

That is, he favors limiting speech so that people don't get the wrong idea (the wrong idea being that money affects elections). Under the system we have, as the majority of the Supreme Court has interpreted the Constitution, candidates can spend all the money they want trying to get elected and people are free to get the "notion" that money affects the outcome of elections.

Justice Stevens continues:

The majority’s response to Justice White relied on the rhetorical flourish that “the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.” The assumption underlying that colorful argument...

Colorful?

... is that limitations on the quantity of speech in public debates are just as obnoxious as limitations on the content of what a speaker has to say. 

That is to say, it's not really so bad for the government to tell a candidate: We think you've said enough.

But there is nothing even arguably unfair about evenhanded rules that limit the amount of speech that can be voiced in certain times or places or by certain means, such as sound trucks. If we view an election as a species of debate between two adversaries, equalizing the amount of time (or money) that each can spend in an attempt to persuade the decision-makers is fully consistent with the First Amendment. Otherwise, appellate court rules limiting the time that the adversaries spend in oral arguments would be invalid because they limit the speech of one adversary in order to enhance the relative voice of his or her opponent.

He's equating the formal conditions within the confines of the appellate courtroom to the speech that takes place in the entirety of all of the forums in which a candidate might speak: all of the city squares and auditoriums, all of the TV and radio channels, all of the print media, and the entirety of the internet!

There's very little mention of Citizens United in Stevens's book, perhaps because the opinion wasn't written by the Chief Justice, and the subject of the book is Chief Justices. But he does mention it, musing that, based on Roberts opinion in Snyder v. Phelps, "perhaps I should give him a passing grade in First Amendment law."

But for reasons that it took me ninety pages to explain in my dissent in the Citizens United campaign finance case, his decision to join the majority in that case prevents me from doing so.

That's it. He doesn't even attempt to explain Citizens United to the general reader, who's expected to accept that the Court got it wrong but it would take 90 pages to explain why. Citizens United — which we covered in my conlaw class yesterday — is indeed damned pesky to absorb, and there's something disturbing about a case that purports to tell us something fundamental about political speech in our democracy, but that cannot be talked about in straightforward terms. If he's so right and the other side is so wrong, he should be able to say why in a clear, readable few pages. Instead, what we get is either way overcomplicated, so you'll have to go read 90 pages, or it's insultingly oversimplified: John Roberts flunks!

Here's the 90-page dissenting opinion, in case you're up for reading it. As we say on the limitless internet: Read the whole thing. I'll bet very few people have read the whole thing. Justice Stevens delves into the history of Americans' attitudes about corporations. (In Citizens United, the majority emphasized free speech, not the source of the speech, while the dissenters made a distinction between individuals and corporations and would have accepted limits on speech when it comes from corporations.) Stevens wrote about the fear of corporations in early American history. He quotes Lawrence Friedman's "A History of American Law": “The word ‘soulless’ constantly recurs in debates over corporations… . Corporations, it was feared, could concentrate the worst urges of whole groups of men”). Later in his opinion, Stevens augments that anxiety about corporations with his own words: "corporations have no consciences, no beliefs, no feelings, no thoughts, no desires."

Here's the whole "soulless" paragraph from Professor Friedman's book:

The word “soulless” constantly recurs in debates over corporations. Everyone knew that corporations were really run by human beings. Yet, the word was not completely inappropriate. Corporations did not die, and there was no real limit to their size, or their greed. Corporations might aggregate the worst urges of whole groups of men. No considerations of family, friendship, or morality, would temper their powers. People hated and distrusted corporations, the way some people came to fear the soulless computer—machines that can join together the wit, skill, power, and malevolence of infinite numbers of minds.

Thank God my computer is soulless! I'm using it to write this post, and I wouldn't like it to insert any morality, beliefs, feelings, thoughts, and desires, between me and you, as I invite you to aggregate your possibly evil urges here in the comments. With the power of the soulless computer we can join together the wit, skill, power, and malevolence of infinite numbers of minds.

How scary is that?

"I am told that Bill [Rehnquist] sometimes used rather strong language..."

"... to voice his disapproval of unfavorable rulings by the referee in his son’s games. With regard to his colleagues, he used somewhat milder language, though it was still emphatic. He often described the harsh consequences of his strict enforcement of a rule that seemed inequitable to some of us as 'tough tacos.' Bill had a good sense of humor, but unlike some of his colleagues, he seldom displayed it at oral arguments."

Writes retired Supreme Court Justice John Paul Stevens in his new book "Five Chiefs: A Supreme Court Memoir," which I've been reading.

Retired Supreme Court Justice John Paul Stevens talks about his "most unpopular opinion" — Kelo v. New London.

The WSJ reports:

"I had people at a bridge game stop me and ask, 'How could you have written that opinion? We thought you were a good judge, but we learned otherwise,'" [Justice Stevens] said. "But you can't explain the whole law of eminent domain to your bridge opponents."

He particularly criticized the logic of Justice Sandra Day O'Connor.... The O'Connor dissent "took the position that public use is required in all cases except cases where they were remedying harm, getting rid of a nuisance or, in the case of the Hawaiians, correcting an injustice," Justice Stevens said in the interview. But in the 1954 case, "the irony of it is that the department store was in perfect condition," he said. "Their distinction was very unpersuasive."

Justice Stevens, still voting...

... says he would have joined Justice Alito's "powerful dissent" in Snyder v. Phelps.