Washington
CNN
—
Newly released documents from the files of a late justice show how the Supreme Court was concerned with how to avoid appearing political when it ruled unanimously against President Bill Clinton’s attempts to avoid lawsuits in the White House 25 years ago.
The decades-old documents provide a fresh look at how worried the court was in the late 1990s about being cast as yet another political institution in a Washington that was becoming increasingly divided among partisan lines.
The documents help paint an almost quaint picture of the court, which, more than two decades later – and with nearly an entirely different membership from the one represented in the documents – has steadily been viewed by the public as becoming more entrenched in politics and culture war issues along predictable lines.
The internal documents belonging to Justice John Paul Stevens, a leading liberal who retired in 2010, were released Tuesday by the Library of Congress. The new documents cover about 20 years of his 35 years on the bench, with the files offering a view into the usually secretive innerworkings of the court.
One of Stevens’ more memorable written opinions came in Clinton v. Jones, with the court ruling unanimously that the then-president could not invoke presidential immunity to avoid a civil lawsuit for alleged sexual misconduct brought by Paula Jones, who said Clinton sexually harassed her when he was governor of Arkansas.
The final decision was a strong rebuke of arguments put forth by Clinton’s lawyers, who stressed that because of the demands of the nation’s highest office, the litigation should be delayed until after he left office.
The documents released Tuesday show that some of the justices were keen on sticking together on the outcome of the case and how at least one justice stressed during deliberations that the court steer clear of issuing a ruling that could lead to accusations of partisanship at the high court.
“This case is in the center ring of partisan politics (circus is the proper analogy), and it is of course crucial that we not appear to be taking political sides,” conservative Justice Antonin Scalia wrote to Stevens in a memo that was critical of the liberal justice’s early opinion drafts in the case.
“Yet every time I read through the opinion I get the impression, in two places, that we are doing Mike McCurry’s job for him: explaining to the public why this appeal was, after all, a reasonable objection interposed by the President, and not just (as political opponents charged) a gimmick to delay the trial beyond the last election,” Scalia continued, referring to Clinton’s then-White House press secretary.
Scalia urged Stevens to cut from early drafts references to “the force of the arguments” made by Clinton’s attorneys, as well as a part where the liberal justice writes that the then-president “advanced a powerful argument supporting this immunity claim that is based on the text and structure of the Constitution.”
The latter sentiment, Scalia wrote, gave him “the uneasy feeling we are flakking for the White House.”
Before Stevens could respond in full to Scalia’s concerns, at least one other member of the court spoke up in support of the suggestions: Justice Anthony Kennedy.
“I think Nino’s reading of the opinion is valuable and insightful. I endorse all his comments and hope you can accept them,” Kennedy said in a note to Stevens.
Stevens did eventually accept the changes, and he conceded to Scalia in a response memo that he might have taken some liberties in his early drafts.
“Many thanks for your thoughtful and constructive letter. I am particularly grateful for your cri de coeur, for which I have a response,” he wrote in part.
Stevens, however, went on to say that “it is appropriate to make it clear that we regard the arguments put forward on behalf of the President as serious submissions, and not just a gimmick to stall the case until after the election.”
And he raised concern about what he described as the court’s duty to show respect toward the Executive Branch.
“In this case, I think it wise to temper the resounding defeat that we are delivering to the head of a coordinate branch of the government with comments that may help to preserve the dignity of the office,” Stevens wrote. “Presumably, over the years, the opinion will be read by a large number of people who will have no knowledge of the possible political motivation for petitioner’s litigating strategy.”
The case – and the salacious details it centered on – seemed unique at the time, but questions around how much protection from civil lawsuits comes with occupying the presidency continue, with former President Donald Trump currently tied up in lawsuits related to the January 6, 2021, Capitol insurrection. In those cases, his lawyers have argued that he should be shielded from the litigation since his actions at issue in the suits was protected presidential speech.
The Supreme Court’s decision in the Clinton matter allowed the case to continue while he occupied the White House, and, after years of fighting the lawsuit, he eventually settled the case for $850,000. The case arose as independent counsel Ken Starr was investigating various matters related to Clinton, including his affair with Monica Lewinsky. The wide-ranging Starr investigation eventually led the US House’s impeachment of Clinton and his Senate acquittal.
Stevens’ files from the Clinton case shed light on how determined various members of the court were with keeping all nine justices on board with the decision.
Though the court is known for sometimes issuing unanimous decisions in some under-the-radar cases, doing so in a high-profile case concerning another branch of government allowed the court to largely avoid accusations of partisanship.
“I hope my next draft will come close enough to accommodating the concerns expressed by you, David [Souter], and Ruth [Bader Ginsburg] to enable you to join without losing anybody already on board,” Stevens wrote in his memo to Scalia.
In a separate memo from Ginsburg to Stevens, she wrote that at an earlier stage of the case, she “favored” something akin to how the lower courts ruled.
“But unanimity in this case would serve Court and Country best, and your fine draft satisfies many of my concerns,” Ginsburg wrote.
She added that Stevens could further help the cause with some tweaks: “Below, several suggestions. Your willingness to indulge them would help me to come on board comfortably.”
Justice Sandra Day O’Connor also expressed a desire to keep the nine together on the decision, with the moderate justice writing in a memo to Stevens that although she had concerns about a particular question related to the case, “We do not have to decide that question now, and in the spirit of trying to get a large majority for your opinion, I join it. You have written it in a thorough and convincing manner, and you do not foreclose my concerns.”
As for Stevens’ final written opinion, it, too, eventually proved quaint, with the justice predicting that it was “unlikely that a deluge of such litigation will ever engulf the Presidency.”
“As for the case at hand, if properly managed by the District Court, it appears to us highly unlikely to occupy any substantial amount of petitioner’s time,” he wrote.
