CBA Record Sept-Oct 2019

memoir, Justice Stevens explained that after the initial impression vote following the oral argument in District of Colum- bia v. Heller , he hoped to persuade either Justice Kennedy or Justice Thomas to switch their votes and adhere to the judi- ciary’s long-standing view that the Second Amendment does not confer a personal constitutional right to possess firearms. Toward that end, Justice Stevens circulated his probable dissent weeks before Justice Scalia circulated his proposed opinion for the Court. In his cover memo, which is reproduced in his memoir, Justice Ste- vens asked the Justices in the majority to consider whether, even if they were right about the Framers’ intent, they should make such a “massive change in the law” and intrude into “a quintessential area of policy-making in which there is no special need or justification for judicial supervi- sion.” Noting that there was “still time to avoid a serious and totally unnecessary self-inflicted wound,” Justice Stevens urged “each of the Members of the majority to give careful consideration to the impact of this decision on the future of this institu- tion when weighing the strength of the arguments I have set forth in what I hope will not be a dissent.” Justice Stevens did not prevail, although he believed he had forced significant changes to the majority opinion. At our May reunion, he explained that he remained deeply troubled by Heller , which

Justice Ginsburg noted in her remarks at the funeral that “no jurist with whom I have served was more open to what he called ‘learning on the job.’” Justice Stevens listened to other people because he wanted to learn and was sincerely interested in what others thought. His law clerks from the 1999Term report that they were surprised that Justice Stevens sought out Justice Scalia’s views on dif- ficult issues on more than one occasion. He did so not because he expected to agree with Justice Scalia but because he wanted to hear from someone who would challenge his thinking. Not Afraid to Change Course Justice Stevens was not afraid to admit mistakes or to change course if he decided he had been wrong. During my clerkship, he returned from one oral argument shak- ing his head because he thought he had pressed a particularly hapless advocate a bit too hard; he said he should not have embarrassed the “poor man.” In later years, for a time he questioned his own oft-repeated story of seeing Babe Ruth “call his shot” during 1932 World Series at Wrigley Field and then hit a towering home run to the centerfield scoreboard. In 2009, Justice Stevens’ memory was challenged by another eye-witness who claimed that Babe Ruth’s called shot went into the bleachers nowhere near the score- board. For a time Justice Stevens accepted that his memory was faulty, telling Jeffrey Toobin in a New Yorker interview that it was a good example of the pitfalls of relying on the recollections of an “elderly witness.” But after the interview came out, Justice Stevens wondered whether both eye-witness accounts were right—a score- card hanging in his chambers showed that Ruth had hit two home runs that day. After some research, his law clerk discovered that the called shot was the second home run and that it had landed precisely where the Justice remembered—a discovery that left the Justice “gleeful.” Because Justice Stevens was open to per- suasion, he believed that his colleagues— whose good faith and commitment to the law he never doubted—would be equally open to the arguments he made. In his

he described in his book as “unquestion- ably the most clearly incorrect decision that the Court announced during my tenure on the bench.” Although he regret- ted a number of the Court’s more recent decisions, he never lost his faith in the Supreme Court as an institution or his optimism for the future. Justice Stevens was renowned for writ- ing dissents and concurrences. In fact, he holds the record for separate opin- ions—716 dissents and 384 concurrences. Justice Stevens never thought that writing separately was a waste of time or that the Justices should strive to present a unani- mous front. His view was that dissents and concurrences push the majority to clarify and defend its reasoning and set the stage for correcting erroneous decisions in the future. Justice Stevens’ own experience confirmed that dissents can become major- ity opinions. In fact, at our 2004 clerks’ reunion, the evening entertainment was a game of “JPS Jeopardy” in which one category was “I Told You So” and involved a list of Stevens dissents that had subse- quently become majority opinions. I can only hope that in the future Justice Stevens’ faith in the system will be rewarded with many more.

Michele Odorizzi is a partner at Mayer Brown LLP. She served as a law clerk for Justice Stevens from 1979-1980.

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