Stevens and Elephants

Justice Stevens was one of the finest members of the Supreme Court ever because he was likely the last to approach every case with an open mind. He came to the bench from a privileged background and an antitrust practice with a major law firm. Of course, his family had suffered during the Depression when their hotel business failed and his grandfather and uncle went to early deaths and his father was imprisoned for fraud. That his father was later exonerated and freed did not erase the experience from the teenage son's consciousness.

Gerald Ford, who had been a partisan minority leader in the House and will be remembered for the disgraceful Nixon pardon, which at least cost him election to the Presidency, did act presidentially with regard to this Supreme Court appointment. Then-Judge (7th Circuit) Stevens's name was advanced by Sen. Charles Percy of Illinois, the kind of moderate Republican with a strong business background who no longer exists, and cleared by Ford's finest appointment, the distinguished former Dean of the University of Chicago law school and President of that university, Attorney-General Edward Levi. He was confirmed, 98-0, in those calmer times.

Stevens did strike observers when he was appointed as likely to follow a center-right trajectory on the court. Instead, his bow ties signaled someone who was independent if not maverick. He seemed to take each case as it came, without a prefixed position. This country has always been more tolerant of far-right positions than far-left ones: Stevens was in reality a moderate; he has been described as a liberal because our media and politicians have moved the center so far to the right. His mentor, Wiley Rutledge, for whom he clerked, was a liberal. So was William O. Douglas. We haven't had any on the court since then.

But some justices have demonstrated a willingness to change their world views. Earl Warren had been a solid conservative when Attorney-General and Governor of California. Now, it is hard to believe he was the Republican nominee for Vice President in 1948. He evolved or, more probably, was able to act on his long-held personal outlook when he joined the court. So did Stevens. He even did what hardly any of them have ever done, before or since: he acknowledged that some of his earlier decisions had been wrong.

I see his dissents in Bush v. Gore and in the Heller 2nd Amendment case as his shining moments. If you read his dissent in Heller, it destroys the spurious historical justifications Scalia managed to convince four ignorant colleagues to accept. The Bush v. Gore decision was fraudulent the moment it appeared and will haunt us by its naked power grab in inflicting someone who had not clearly won the election on us as President. Until now, he was the worst to hold that office.

A story in last Sunday's New York Times Magazine convinced me to change, as it happens. It described in fascinating detail how keeping elephants in captivity, much less having them perform, is entirely alien to their nature and, it has now become clear, their very continued existence. This is not a conclusion that I arrived at easily. I always enjoyed the circus and I've found animal rights a dubious legal concept.

Having put the circus out of business--yes, some small ones persist but Ringling Brothers' fall truly sounded the death knell for this ancient survivor in the show-business world--the animal rights movement turned its attack machine on the zoos. This article showed clearly that the zoos have ignored doing the right thing, which would be to support and lead a movement to enable elephants to endure in their natural habitat. Instead, they have connived to evade export bans to increase their entertainment values by exhibiting elephants. Even if I'm still skeptical of animal rights as a legal theory, I do hate to see animals mistreated. The elephant story shows that the zoos have behaved abysmally and deserve condemnation.