Judges and Judiciary
Jul. 20, 2002
Justice Stevens Meets the 9th
SAN DIEGO - Supreme Court Justice John Paul Stevens on Thursday refused to chastise the 9th U.S. Circuit Court of Appeals for its reversal rate at the high court, saying people should focus instead on the thousands of cases that stand because the high court does not review them.
In a wide-ranging discussion at the 9th Circuit Judicial Conference that differed significantly from the conversation held each year with Justice Sandra Day O'Connor, who is responsible for the 9th Circuit, Stevens declined to talk about the school voucher decision of last session, which allowed government financial aid to religious schools. He did say, however, as the lone dissenter in that case, that he hoped he was wrong about its potential for creating a chink in the wall separating church and state.
The sprightly Stevens, sporting his traditional bow tie, was joined by Solicitor General Theodore Olson during a limited question session on the closing day of the judicial conference in Coronado.
The question-and-answer session with a Supreme Court justice closes the conference each year. Traditionally, O'Connor attends , but she had another engagement and Stevens came in her place.
In past years, O'Connor has criticized the circuit for its reversal rate; in the 1996 session, for example, 27 of 28 cases heard by the high court were reversed. She has urged the appeals court to increase its number of en banc reviews to correct the situation.
Stephens, the court's leading dissenter, took a different tack.
"It is not the affirmances or reversals that matter. They are a small number of overall cases. You have to look across the wide expanse of how many thousands of cases the [Supreme Court] refuses to hear, and not the grant of review for just 10 or so," he said.
He added that the court's affirmance of the 9th Circuit ruling that building moratoriums at Lake Tahoe do not amount to a taking included "wonderful" work by the district judge in laying out the factual record and making findings that helped the court.
In talking about the death penalty, Stephens said most of the issues in the future will be for legislatures to decide, and he specifically mentioned the Illinois moratorium on executions.
Referring to the court's decision barring the execution of mentally retarded defendants, he said, "The next area of legislation should be age limits on execution. I think that will be the next area of debate. As you know, [the United States] is out of step with the views of most of the rest of the world."
Olson said that the solicitor general's office took no position on that case because there was no federal issue involved. The federal death penalty statute bars the execution of mentally retarded defendants.
Stephens also made a rare comment about Bush v. Gore: "I have never spoken much about it," he said. In all the writing about the case, "there has been one tremendous omission: the performance of counsel was remarkable," he said.
"With all the pressure, they did a good job. They disagreed without being disagreeable."
On the issue of civil liberties in times of terrorism, Stephens addressed himself directly to the judges in the audience. "There may be tension [between the competing points of view]. The main thing is to listen to both sides before coming to any conclusion," he said.
"There are very important issues on both sides."
On a personal level, as a former naval intelligence officer, he said it was important to retain the confidentiality of intelligence until accuracy is determined, and that there is a tendency to say too much in public before all the dots are connected.
The conference concluded its final session with a tutorial for judges and lawyers on legislation in the area of cloning and stem cell research.
Pamela Mac Lean
For reprint rights or to order a copy of your photo:
Email
Jeremy_Ellis@dailyjournal.com
for prices.
Direct dial: 213-229-5424
Send a letter to the editor:
Email: letters@dailyjournal.com