Jesse Wegman

<h1>(Editorial Observer): Most Supreme Court justices keep a low profile after retiring from the bench. The court is the most opaque institution in American government, and its members go to great lengths to keep it that way. They avoid weighing in publicly on live legal questions, and they rarely, if ever, criticize the work of the court’s current members.</h1>

That wasn’t John Paul Stevens’ style.

Stevens, who died on Tuesday at 99, stepped down from the bench in 2010 — but even after serving for more than three decades, he never seemed entirely finished with the job.

In the nine years of his retirement, he remained engaged in the nation’s civic life, as well as in its most fraught legal debates. He wrote essays, opinion pieces and books for the general public, including one that called for several amendments to the Constitution. He toured the country giving speeches. And he spoke out against rulings by the court — those he had participated in and some he hadn’t.

It was a refreshing approach that helped to humanize and demystify the court, whose integrity Stevens cherished as much as anyone. He made no secret of his feelings about behavior that reflected poorly on the institution.

Last fall, after Brett Kavanaugh, President Donald Trump’s second Supreme Court nominee, laced into Democrats and liberals in a partisan outburst during his confirmation hearings, Stevens took the unusual if not unprecedented step of calling on the Senate to reject his nomination. Kavanaugh “has demonstrated a potential bias involving enough potential litigants before the court that he would not be able to perform his full responsibilities,” Stevens said. (Kavanaugh was confirmed, 50-48.)

The full and open airing of dissent, Stevens believed, was essential not only to his role as a justice but also to the healthy functioning of American law. While temperamentally gentle and unfailingly gracious, he didn’t hesitate to make his differences with other justices known.

He was particularly upset with the court’s decision in Bush v. Gore, which effectively decided the 2000 presidential election by a 5-4 vote, with the more conservative justices on one side and the liberals, including Stevens, on the other — a result that “can only lend credence to the most cynical appraisal of the work of judges throughout the land,” he wrote in dissent.

He also tangled frequently with Justice Antonin Scalia, one of the court’s most bellicose conservatives. In a landmark 2008 case that established an individual right to bear arms under the Second Amendment, Scalia, writing in another 5-4 decision, relied heavily on his own reading of American legal and constitutional history. Stevens, in dissent, came right back with his own lengthy and competing narrative.

“The Court would have us believe that over 200 years ago, the Framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons,” Stevens wrote. “Absent compelling evidence that is nowhere to be found in the Court’s opinion, I could not possibly conclude that the Framers made such a choice.”

Unlike Scalia, whose legal views only hardened with age, Stevens continued to question himself and his assumptions, and to listen closely to the dissents of others.

In 2008, Stevens wrote the lead opinion for the court in a case upholding the constitutionality of Indiana’s new voter-ID law. The law had been sold as a way of preventing one type of voter fraud, but as Justice David Souter pointed out in dissent, there was no evidence that such fraud actually occurred, and in the meantime the law made it much harder for many voters to cast a ballot. In 2013, Stevens told The Wall Street Journal that while he still believed his 2008 opinion was correct given the information available to him at the time, “as a matter of actual history,” Souter was “dead right.”

This humility was one of many ways in which Stevens seemed from another era — one of brightly colored bow ties, decency and nonpartisan comity. An era when a justice’s vote couldn’t be predicted based on the party of the president who nominated him.

When Stevens joined the court in 1975, it was an all-male, nearly all-white institution. The justice he replaced, William O. Douglas, had been picked by President Franklin Roosevelt. Stevens’ confirmation by the Senate came less than three weeks after President Gerald Ford nominated him. The vote was unanimous, a scenario as unimaginable today as it was unremarkable then.

He was a Republican jurist nominated by a Republican president, but by the time he stepped down, he had become the leader of the court’s liberal wing. Over the years he wrote major opinions on the death penalty, the scope of the president’s power to detain enemy combatants and the role of government agencies in making regulations. All along he insisted that it wasn’t he who had moved left but the court that had moved right. “I don’t think of myself as a liberal at all,” he told The Times in 2007. “I’m pretty darn conservative.”

After nearly 35 years on the court — the third-longest tenure of any justice — Stevens stepped down, but it was clear that he yearned to stay in the middle of the action. In his book “Six Amendments,” he called for major constitutional reforms, including the abolishment of the Second Amendment and the death penalty, and amendments that placed greater controls on partisan gerrymandering and campaign finance.

The New York Times’ editorial board wasn’t spared Stevens’ piercing gaze. In 2015, he wrote a letter to the editor criticizing an editorial on the court’s role in policing prosecutorial misconduct. The editorial described an abominable 2011 decision in which the court overturned a jury’s $14 million reward to a Louisiana man who had been wrongly convicted of murder and spent 14 years on death row because a prosecutor hid evidence that proved his innocence.

The editorial called on the court to take a more aggressive role in punishing prosecutorial misconduct like the kind in the Louisiana case. Stevens would have gone further. He agreed that the 2011 ruling had been a “manifest injustice.” Still, he said, the editorial failed to identify the most effective way to hold prosecutors responsible.

“The rule of respondeat superior — which requires employers to pay damages for torts committed by their employees in the ordinary course of business — should apply to state law enforcement agencies,” Stevens wrote. It would be a “wise” solution to a persistent and widespread problem, one “well supported by applicable law and scholarly writing.” It was also, he pointed out, supported by his own writing — a dissent in a 30-year-old Supreme Court case involving a killing by a police officer.

No other justice joined what Stevens called his “rather old-fashioned and simple approach” in his dissent — a point that surely didn’t trouble him.

This article originally appeared in <a href="https://www.nytimes.com/2019/07/17/opinion/justice-stevens-dead-supreme-court.html" link="null" target="_blank">The New York Times</a>.

John Paul Stevens dissented until the end

Stevens, who died on Tuesday at 99, stepped down from the bench in 2010 — but even after serving for more than three decades, he never seemed entirely finished with the job.

<h1>Changing the U.S. Constitution is like winning an extremely long, slow-motion lottery.</h1>

Since 1788, when the nation’s charter was ratified, more than 11,000 amendments have been proposed. Twenty-seven have succeeded.

The odds of any one person writing an amendment that clears all the required hurdles — a two-thirds vote in both houses of Congress followed by ratification in three-quarters of the states — are minuscule. Doing it more than once is a virtual impossibility.

In American history, two people have that distinction.

One is James Madison, the founding father who did more than perhaps any other to shape the Constitution itself, and then almost immediately afterward drafted and pushed through the first 10 amendments, also known as the Bill of Rights.

The other is Birch Bayh, the former three-term Democratic senator from Indiana who died early Thursday at 91.

Bayh was still in his first term when, in the mid-1960s, he became a one-man constitutional reform machine. In the wake of President John Kennedy’s assassination, Bayh drafted and steered through Congress the 25th Amendment, which set out rules for the temporary replacement of a president or vice president who dies, resigns or becomes unable to govern. A few years later he did the same for the 26th Amendment, which lowered the voting age to 18.

He may yet get credit for a third: the Equal Rights Amendment, which would prohibit discrimination on the basis of sex. After Rep. Martha Griffiths, D-Mich., pushed the ERA through the House, Bayh sponsored it in the Senate, where it passed in 1972. It has slowly been racking up ratifications ever since. Thirty-seven states have approved it, one shy of the required 38.

But the amendment that would have had the biggest impact of all was the one he could not get passed.

Between 1966 and 1970, Bayh led a vigorous national campaign to abolish the Electoral College and elect the president by a direct popular vote.

He was far from the first to try. Our system of presidential electors — an anti-democratic relic of the late 18th century — has been targeted for reform or abolition roughly 700 times, more than any other part of the Constitution. No one has ever come as close to eliminating it as Bayh.

Abolition wasn’t even part of his original plan. He thought, as many people did at the time, that the Electoral College needed only a few tweaks. As chairman of the Senate’s subcommittee on constitutional amendments, Bayh arranged for hearings on various reform proposals. On the first day of hearings, he rejected the idea of a national popular vote out of hand. The smaller states, which believed they benefited from their disproportionate number of electoral votes, would never go for it. “Putting it optimistically,” he said, the chances of Congress passing a popular-vote amendment were “extremely slim, if not hopeless.”

A few months later, he did a complete about-face.

In a remarkable speech on May 18, 1966, Bayh said the hearings had convinced him that the Electoral College was no longer compatible with the values of American democracy, if it had ever been. The founders who created it excluded everyone other than landowning white men from voting. But virtually every development in the two centuries since — giving the vote to African-Americans and women, switching to popular elections of senators and the establishment of the one-person-one-vote principle, to name a few — had moved the country in the opposite direction.

Adopting a direct vote for president was the “logical, realistic and proper continuation of this nation’s tradition and history — a tradition of continuous expansion of the franchise and equality in voting,” he said.

He then explained how the Electoral College was continuing to harm the country. The winner-take-all method of allocating electors — used by every state at the time, and by all but two today — doesn’t simply risk putting the popular-vote loser in the White House. It also encourages candidates to concentrate their campaigns in a small number of battleground states and ignore a vast majority of Americans. It was no way to run a modern democracy.

In short, Bayh said, the president “should be elected directly by the people, for it is the people of the United States to whom he is responsible.”

The speech was galvanizing, and by 1968, his popular-vote campaign had won the support of 80 percent of the country, according to a Gallup poll — Republicans and Democrats, as well as organizations as varied as the Chamber of Commerce, the League of Women Voters and the American Bar Association.

Then came the chaotic election of 1968, when George Wallace, the former Alabama governor and arch-segregationist, nearly managed to deadlock the vote and force Congress to pick the winner. Most people were just beginning to understand how bizarre and dangerous the Electoral College was. The prospect of an unreconstructed racist determining the presidency rightly horrified them. As best-selling author James Michener wrote in a book advocating a switch to the popular vote, the Electoral College was a “time bomb lodged near the heart of the nation.”

In September 1969, the House voted overwhelmingly to abolish the Electoral College and replace it with a direct popular vote. President Richard Nixon got onboard, and polls of state legislatures suggested strong support throughout the country. All signs pointed to another successful amendment for Bayh and a radical change in the way Americans chose their presidents. All signs but one.

As soon as the amendment reached the Senate, it was blocked by Southern segregationists, led by Strom Thurmond of South Carolina, who were well aware that the Electoral College had been created to appease the slaveholding states. They were also aware that it continued to warp the nation’s politics in their favor, since millions of black voters throughout the South were effectively disenfranchised by restrictive registration and voting laws. Even those who were able to vote rarely saw their preferences reflected by a single elector. A popular vote would make their voices equal and their votes matter — and would encourage them to turn out at higher rates.

The Southerners delayed and filibustered the amendment until it died, finally, on Sept. 29, 1970. The last attempt to end the filibuster failed by five votes.

It was a devastating loss, but Bayh didn’t give up. He continued to push his popular-vote amendment throughout the 1970s, bringing it back every couple of years, not stopping until he was swept out of office in the Reagan revolution of 1980, when he lost his seat to a young Indiana congressman named Dan Quayle.

With Bayh’s departure, the Senate lost its most devoted advocate for a national popular vote. “No one was a better legislator than he was, and he couldn’t get it done,” Jay Berman, the senator’s former chief of staff, told me. “It’s just such an empty feeling because it was so right to do. And we couldn’t do it.”

Last fall I visited Bayh at his home on Maryland’s Eastern Shore, to interview him for a book I’m writing about the Electoral College and the push for a popular vote. Bayh shuffled to the door to greet me, keeping one hand on his wife, Kitty, for balance. Even stooped over, he was tall, with a full head of white hair. His handshake was frail, but I could feel the memory of a lifelong politician’s confident grip. We sat around the kitchen table, drank iced tea and talked for hours.

The oldest memories were intact. “Nobody in my family background had ever been involved in politics,” he said, recalling a childhood spent working on his grandparents’ farm in Terre Haute. “When my father found out what I was doing, I think he wondered what he’d done wrong as a parent.”

On the topic of the popular vote, he struggled to reconstruct scenes from half a century ago. But the pain of the loss was still there. If anything, it was keener, now that the Electoral College has awarded the White House to two popular-vote losers in the past two decades.

“I don’t know,” Bayh said, shaking his head. “I like to think as a country, as we grow older, we learn. It just makes such good sense.”

When I asked about the familiar charge that eliminating the Electoral College would lead to “mob rule,” Bayh brushed it off. “That, to me, is the positive end of it. Why shouldn’t they? Why shouldn’t they be able to determine their own destiny?”

This article originally appeared in <a id="e2c148be-50bf-40fe-863d-934f7ef8a7b2" href="https://www.nytimes.com/2019/03/14/opinion/birch-bayh-constitution.html">The New York Times</a>.

The man who changed the constitution, twice

In American history, two people have that distinction.

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Jesse Wegman

Articles written by the author

John Paul Stevens dissented until the end

The man who changed the constitution, twice