By John Paul Stevens

Little, Brown and Company, 2011, 292 pages, $16.99

When Associate Justice of the Supreme Court John Paul Stevens died on July 16, 2019 at age 95, he was in the midst of promoting his new book "Making of A Justice: Reflections on My First 94 Years." At the time of his voluntary retirement in 2010, he was the third longest serving Supreme Court Justice in U.S. History. As the most senior among the associate justices since 1994, he considered himself the "Second Among Equals," next to the Chief who is known as the "First Among Equals."

While reading the many tributes and obituaries about his extraordinary career, I saw that he had published a book titled "Five Chiefs—A Supreme Court Memoir" only a year after his retirement in which he candidly and "objectively" discussed, from his vantage point, the last five chief justices (CJs) starting with Fred M. Vinson up to and including the current CJ, John G. Roberts Jr.

In 1978, I was inducted as a member of the Supreme Court Bar and have toured the magnificent courthouse on several occasions. In 2015, I had the pleasure and privilege of being seated in the front row, reserved for attorney-members only, as I observed with pride the induction of my daughter and future son-in-law as members. I was seated only 8 feet from the "curved" bench. Remaining for the one case that was being argued that morning, I was able to witness not only the formality of the proceedings, but the interactions between the various justices, especially the conviviality between Justices Antonin Scalia and Clarence Thomas, sidekicks on the political spectrum.

True to their reputations, Scalia was the most vocal and combative with counsel, while Thomas uttered not a word. Scalia died unexpectedly less than a year thereafter.

Having spent almost my entire career working in the judicial system, I have always been fascinated by what transpires behind the scenes, especially when it comes to the process and traditions of the appellate courts, on both the federal and state level. In "Five Chiefs," Justice Stevens pulled back the curtain (as in "The Wizard of Oz") and lets us in on some of the traditions that were established over the years. He further provided interesting anecdotes and insight into the thinking of the various CJs as they viewed their respective roles, as well as his perspective on the most notable decisions rendered during their tenures.

Stevens' first connection with the Supreme Court was as a law clerk to Associate Justice Wiley B. Rutledge, during CJ Vinson's tenure and, thereafter, as a private practitioner arguing his first Supreme Court case before CJ Earl Warren in 1962. Subsequently, in 1970, Stevens was appointed to serve as a judge of the U.S. Court of Appeals for the Seventh Circuit by President Richard M. Nixon. Upon the 1975 retirement of Associate Justice William O. Douglas, who still holds the record as the longest serving justice, President Gerald R. Ford elevated Stevens to become an Associate Justice, thus becoming a "junior" to CJ Warren Burger, a "contemporary colleague" to future CJ William H. Rehnquist and, finally, a "junior" colleague to CJ Roberts.

Stevens begins with an historical synopsis of all the CJs preceding Vinson, which I found to be the most fascinating part of his book.

Although John Jay lays claim to becoming the first CJ, he resigned his position in 1795 to become governor of New York. Considered the most revered of all the CJs was John Marshal (#4), appointed by President John Adams in 1801. His most famous opinions—Marbury v. Madison (1803), McCulloch v. Maryland (1819) and Gibbons v. Ogden (1824)—are still required reading in law school. Marbury set the gold standard for holding that the court can declare an act of Congress unconstitutional. Yet, Stevens opined that he found this case "puzzling because [he] never found satisfying Marshall's explanation of why the statute [at issue] was unconstitutional."

The fifth CJ, Roger Taney, appointed by President Andrew Jackson in 1836, will forever be remembered for his infamous opinion in Dred Scott v. Sanford (1859), which held that "a slave did not become free when taken into a free state … and that African Americans could not be citizens of the United States … ." (162 years later, this probably ranks as the lowest point in the court's history.)

In 1864, President Abraham Lincoln appointed his Secretary of the Treasury, Salmon P. Chase as the sixth CJ of the "Supreme Court." An ambitious politician who wanted to become president, Chase initially ran against and lost to Lincoln before joining his Cabinet. (For a fascinating perspective on Lincoln's election and the selection of his Cabinet, I highly recommend reading "Team of Rivals" by Doris Kearns Goodwin.) Immediately upon becoming CJ, he decided to change his title to "Chief Justice of the United States" because, as Stevens noted, it was more "imposing" in the event he ran for president again. Thereafter, Congress used this new title in all subsequent legislation, as has every successor CJ.

Stevens mentioned that the eighth CJ, Melville Fuller, appointed by President Grover Cleveland in 1888, initiated a custom that is still followed to date: "[b]efore the beginning of an oral argument session, usually while donning his or her black robe, each justice greets every colleague with a handshake."

Another tidbit of the court's history is that Edward White became the first Associate Justice to be elevated to the position of CJ. Initially appointed to the court by President Cleveland in 1894, he served for 16 years prior to his appointment by President William Howard Taft as the ninth CJ in 1910. He served until his death in 1921 and, ironically, was succeeded in that position by the very person who appointed him. (Taft is the only person in U.S. history to serve as head of both the Executive and Judicial branches of government.)

Stevens lauded CJ Taft (#10) with two major accomplishments affecting the court: persuading Congress to adopt the Judiciary Act of 1925, reducing the categories of cases the court was mandated to hear and spearheading the effort for the construction of the current Supreme Court building facing the east side of the Capitol. Stevens refers to it as "the marble palace."

CJ Charles Evans Hughes had the distinction of serving twice on the court. First appointed by President Taft as an Associate Justice in 1910, he served for six years at which time he resigned to run as the Republican standard bearer against Woodrow Wilson. In another twist of irony, when Taft retired in 1930, President Herbert Hoover nominated Hughes to the position of CJ (#11), filling the seat of the man who initially appointed him to the court. In glowing terms, Stevens stated that "[d]uring both of his periods of service on the court, he was regarded as a brilliant lawyer and an especially able jurist. I am sure that Bill Rehnquist thought of him as the predecessor he most wanted to emulate."

The justices sit in order of seniority on the bench, with the CJ in the center seat, the most senior associate to his right, then next most senior on his left and so on in that order. Originally, the "curved" bench was straight "which prevented most of the justices from seeing any colleagues other than their immediate neighbors." Stevens credited CJ Burger for resolving this problem by having the bench angled into three sections during the winter recess of the October 1971 term. As it currently exists, the lectern for counsel is six feet from the bench and the speaker is only 11 feet from the CJ directly in front of him. Out of the public's view, as a concession to "long-standing tradition each justice [ ] has a metal spittoon next to his or her chair."

While Stevens considered CJ Harlan Fiske Stone (#12), a scholar, he elucidated that CJ Vinson (#13) was not the intellectual leader of the court during his tenure, being overshadowed by Frankfurter, Douglas and Rutledge. During his first term as CJ, Vinson hired Byron White as one of his law clerks. White became the first former law clerk to become an associate justice, Rehnquist being the second, Stevens the third and Arthur Goldberg the fourth. (Roberts, who clerked for his immediate predecessor CJ Rehnquist, was initially nominated to fill the seat held by Associate Justice Sandra Day O'Connor and would have been the fifth. However, upon the death of Rehnquist, President George W. Bush nominated him directly to the top position. Subsequent to the book's publication, Neil Gorsuch and Brett Kavanaugh, both of whom clerked for Associate Justice Kennedy also became associate justices.)

CJ Earl Warren (#14), "a tall handsome man," was "one of the most popular politicians" in the country. Governor of California and nominee for vice president as N.Y. Governor Thomas Dewey's running mate in the 1948 presidential election, he was selected by President Dwight Eisenhower as a "recess appointment" in December 1953, which Warren immediately accepted. Thereafter, concerns that his tenure could be terminated upon the expiration of the "next session of the Senate" prompted the president to formally submit his nomination to the Senate in January 1954. Stevens gave Warren "high marks for his opinions interpreting the Constitution, most notably Brown v. Board of Education (1954) and Miranda v. Arizona (1966). Stevens asserted that Warren's least favorite colleague was Felix Frankfurter "presumably because Frankfurter was so loquacious in explaining his own analyses of legal issues." Well known for the Commission bearing his name to investigate the assassination of President Kennedy in 1963, Warren had to be pressured into taking the position by President Lyndon B. Johnson because "Warren firmly believed that Supreme Court Justices should not accept such nonjudicial assignments." Although he submitted his letter of resignation in June 1968, Warren remained on the bench until the confirmation of President Richard Nixon's choice for CJ was confirmed in 1969. His successor had almost the same name in reverse: "Warren Earl" Burger.

CJ Burger (#15), like Marshal, "powerfully illustrated the integrity and independence of the court" with his opinion in United States v. Nixon (1974) requiring the president to produce his secret tape recordings that forced his resignation. On July 1, 1970, Burger implemented a major change in the court's procedure by limiting oral arguments to thirty minutes per side in every case as opposed to a total of two hours in most cases. As the junior justice under Burger, Stevens' most important responsibility was, by way of tradition, to open the door when someone knocked during conferences. Stevens described this responsibility as "even more important than being fully informed about the views of your colleagues." He said that during his first or second conference he was so "absorbed" with what the other justices were saying that he did not realize someone was knocking until two other justices got up to answer the door. Stevens concedes that he had committed "an unforgivable error" and was "humiliated" by the incident. With a sense of comic flair, Stevens, who got to voice his opinion last would begin with "I agree with Bill" if the vote was a four-four split with Rehnquist on one side and Brennan on the other. Burger was a "great admirer" of CJ Marshal and requested that his statue, which was located outside the west entrance of the Capitol, be relocated to its current location on the ground floor of the court. In 1972, Burger acquired the mahogany chair that Marshal sat in and now every new justice sits in that chair during his or her investiture. When Burger decided to resign, he became a "trendsetter" by not waiting until the end of the term to submit a letter to the president requesting to be relieved as CJ. Following Burger's lead, Stevens did the same thing when he decided to retire.

William H. Rehnquist (#16) was an "efficient" and "totally impartial presiding officer." He was "vigilant in making sure every oral argument ended on time" and rarely, if ever, granted additional time. While informal with his colleagues, he was adamant that attorneys addressed the members of the court as justices not judges and as a constant reminder to all that he was the chief, he had four gold stripes stitched onto the sleeves of his robes. The remaining eight justices refused to add any embellishments to their robes. Presiding in only the second impeachment trial in U.S. history, Rehnquist "enjoyed the departure from his normal routine." According to Stevens, the retirement of AJ Thurgood Marshal and the appointment of Clarence Thomas as his replacement was "the most significant judicial event" of Rehnquist's tenure. It shifted the tenor of the court toward the conservative side. Expressing his true feelings regarding Rehnquist's opinions on state sovereignty, Stevens pulled no punches: "Like the gold stripes on his robes, Chief Justice Rehnquist's writing about sovereignty was ostentatious and more reflective of the ancient British monarchy than our modern republic. I am hopeful that his writings in this area will not be long remembered."

The appointment of CJ Roberts (#17) by President George W. Bush was a "welcomed" decision by Stevens, who administered the oath of office. Having argued more cases before the Supreme Court than anyone in the post antebellum era, Stevens considered him a "superb lawyer." Stevens made it clear that he admired Roberts as his CJ and in a shot across the bow of his late predecessor, commends him in his very first decision as "unquestionably correct and consistent with his role as first among equals: He decided not to decorate his robes with gold stripes." Not as efficient as Rehnquist when presiding over oral arguments, he would, when he deemed it appropriate, allow counsel to finish their statements when the "red light" went on. During private conferences he was always (and presumably still is) a "well-prepared, fair and effective leader."

An interesting, often humorous, retrospective of the Supreme Court, based on over three decades of first hand knowledge and experience, I believe this is a worthwhile read for anyone interested in the law and the inner workings of the highest court in our judicial system.

George M. Heymann is NYC Housing Court Judge (Ret); Supreme Court Mediator; Adjunct Professor of Law, Maurice A. Deane School of Law at Hofstra University; and of counsel, Finz & Finz, PC.