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The Honolulu Advertiser
Posted on: Friday, July 20, 2007

Justice Stevens recalls war years in Honolulu

By Ken Kobayashi
Advertiser Courts Writer

Hawaii news photo - The Honolulu Advertiser

Associate Justice John Paul Stevens

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Associate Justice John Paul Stevens of the U.S. Supreme Court served at Pearl Harbor during World War II as part of the Naval intelligence code-breaking division. He recalls the days of martial law and nighttime blackouts for Honolulu, trips to Waikiki with a swimsuit and a towel instead of a gas mask in his gas mask pack, splurging on a $4 steak rather than the cheaper $3 steak meal.

Forty-five years later, Stevens would write the dissent in the high court's 7-2 decision in the Rice v. Cayetano case that struck down the requirement that only voters of Hawaiian ancestry could cast ballots for Office of Hawaiian Affairs trustees, the most significant recent decision dealing with the rights of Native Hawaiians.

Yesterday, Stevens acknowledged that his years in Hawai'i helped shape his views in the dissent, which recognized Hawai'i's unique history as a reason to uphold the law. "I thought they (the majority) were adopting a rather formulistic approach to an issue that had particular significance to this particular area," Stevens said.

He said his experience here, as well as his days at Northwestern University law school, had "an impact."

Stevens, 87, an appointee of President Ford in 1975, is the oldest and longest-sitting justice on the nine-member U. S. Supreme Court.

He gave wide-ranging talks yesterday at both the annual U.S. 9th Circuit Judicial Conference at the Waikiki Sheraton and at a Hawai'i State Bar Association luncheon at the Moana Surfrider Hotel.

A gracious and soft-spoken gentleman who answered all questions, Stevens is widely considered part of the liberal minority of four justices who have been outvoted in 5-4 decisions with Chief Justice John Roberts siding with the conservative bloc.

Stevens, however, downplayed what others say is the increased polarization of the court and even characterized himself more as a judicial conservative who views the court's role as refraining from issuing decisions that should be made by the legislative and executive branches of government.

Stevens, who also came to Hawai'i in the 1990s as part of a program at the University of Hawai'i law school, said that on this trip he visited Pearl Harbor for the first time since the war.

"It was a very moving experience," he said.

In the Rice decision, the majority held that limiting the OHA voting only to those with Hawaiian ancestry is a violation of the U.S. Constitution.

"While splendidly acknowledging this history specifically including the series of agreements and enactments the history reveals the majority fails to recognize its import," he wrote.

"The descendants of the native Hawaiians share with the descendants of the Native Americans on the mainland or in the Aleutian Islands not only a history of subjugation at the hands of colonial forces, but also a purposefully created and specialized 'guardian-ward' relationship with the government of the United States."

He said he has "no doubt" his experiences here had an impact on his dissent.

On other topics:

  • Stevens wrote the court decision that federal drug laws trump states' medical marijuana laws, although he feels this is a "classic example" of how states should be allowed to come up with their own approaches to the issue. But until Congress changes the federal marijuana law, he said he was bound to uphold it.

  • Stevens doesn't agree that there will be an erosion of civil liberties under the Roberts court. He said it's not correct to assume there's a trend to predict the future. "I would not think doom is around the corner or anything like that," he said.

  • A prolific writer of opinions, Stevens said he believes it's a justice's "duty and obligation" to explain why the justice does not agree with the majority.

  • A high point for him came last year when the Chicago-born justice and lifetime Chicago Cubs fan threw out the first pitch at a Cubs baseball game. His grandchildren were thrilled. "They didn't care whether you're a judge," he said.

  • Stevens believes he has a "wonderful job" and he enjoys it, but he does have someone whom he trusts who would tell him when it's time to retire. He didn't mention names, but added, "He's apt to do it when I'm dissenting on one of his decisions."

    Stevens received standing ovations after both of his talks.

    ASSOCIATE JUSTICE JOHN PAUL STEVENS

    Associate Justice John Paul Stevens of the U.S. Supreme Court has been involved in significant cases affecting Hawai'i during his tenure. Some of his votes:

  • 1984 Joined the 9-0 decision that upheld the state's Land Reform Act of 1967, the landmark legislation that essentially allowed residential lessee homeowners to purchase the property under their homes from the landowners. The court held the legislation did not violate the U.S. Constitution's Fifth Amendment prohibition against the government taking private property without providing just compensation.

  • 2000 Wrote the dissent in the 7-2 decision in the Rice v. Cayetano case that struck down the state requirement that only voters with Hawaiian ancestry can vote for trustees of the Office of Hawaiian Affairs. "The Court's holding today rests largely on the repetition of glittering generalities that have little, if any, application to the compelling history of the State of Hawaii. When that history is held up against the manifest purpose of the Fourteenth and Fifteenth Amendments, and against two centuries of this Court's federal Indian law, it is clear to me that Hawaii's election scheme should be upheld," Stevens wrote.

  • 2005 Joined the 9-0 decision that a state law limiting the rent oil companies could charge the dealers did not violate the U.S. Constitution's Fifth Amendment about private property. Chevron asked the court to strike down the law. Attorney General Mark Bennett defended the statute.

    Reach Ken Kobayashi at kkobayashi@honoluluadvertiser.com.