Nixon v. Administrator of General Services/Concurrence Stevens

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MR. JUSTICE STEVENS, concurring.

The statute before the Court does not apply to all Presidents or former Presidents. It singles out one, by name, for special treatment. Unlike all other former Presidents in our history, he is denied custody of his own Presidential papers; he is subjected to the burden of prolonged litigation over the administration of the statute; and his most private papers and conversations are to be scrutinized by Government archivists. The statute implicitly condemns him as an unreliable custodian of his papers. Legislation which subjects a named individual to this humiliating treatment must raise serious questions under the Bill of Attainder Clause.

Bills of attainder were typically directed at once powerful leaders of government. By special legislative Acts, Parliament deprived one statesman after another of his reputation, his property, and his potential for future leadership. The motivation for such bills was as much political as it was punitive — and often the victims were those who had been the most relentless in attacking their political enemies at the height of their own power. #F2/1 Footnote 2/1 In light of this history, legislation like that before us must be scrutinized with great care.

Our cases

"stand for the proposition that legislative acts, no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial are bills of attainder prohibited by the Constitution."

United States v. Lovett, [/us/328/303/case.html 328 U.S. 303], [/us/328/303/case.html#315 328 U.S. 315]-316. The concept of punishment involves not only the character of the deprivation, but also the manner in which that deprivation is imposed. It has been held permissible for Congress to deprive Communist deportees, as a group, of their social security benefits, Flemming v. Nestor, [/us/363/603/case.html 363 U.S. 603], but it would surely be a bill of attainder for Congress to deprive a single, named individual of the same benefit. Cf. id. at [/us/363/603/case.html#614 363 U.S. 614]. The very specificity of the statute would mark it as punishment, for there is rarely any valid reason for such narrow legislation; and normally the Constitution requires Congress to proceed by general rulemaking, rather than by deciding individual cases. United States v. Brown, [/us/381/437/case.html 381 U.S. 437], [/us/381/437/case.html#442 381 U.S. 442]-446.

Like the Court, however, I am persuaded that "appellant constituted a legitimate class of one. . . ." Ante at [433 U.S. 425#472 433 U.S. 472]. The opinion of the Court leaves unmentioned the two facts which I consider decisive in this regard. Appellant resigned his office under unique circumstances, and accepted a pardon #F2/2 Footnote 2/2 for any offenses committed while in office. By so doing, he placed himself in a different class from all other Presidents. Cf. Orloff v. Willoughby, [/us/345/83/case.html 345 U.S. 83], [/us/345/83/case.html#90 345 U.S. 90]-91. Even though unmentioned, it would be unrealistic to assume that historic facts of this consequence did not affect the legislative decision. #F2/3 Footnote 2/3

Since these facts provide a legitimate justification for the specificity of the statute, they also avoid the conclusion that this otherwise nonpunitive statute is made punitive by its specificity. If I did not consider it appropriate to take judicial notice of those facts, I would be unwilling to uphold the power of Congress to enact special legislation directed only at one former President at a time when his popularity was at its nadir. For even when it deals with Presidents or former Presidents, the legislative focus should be upon "the calling," rather than "the person." @Cf. [/us/71/277/case.html 71 U.S. 320]. In short, in my view, this case will not be a precedent for future legislation which relates not to the Office of President, but just to one of its occupants.

Without imputing a similar reservation to the Court, I join its opinion with the qualification that these unmentioned facts have had a critical influence on my vote to affirm.

#T2/1 Footnote 2/1

At the debate on the impeachment of the Earl of Danby, the Earl of Carnarvon recounted this history:

"My Lords, I understand but little of Latin, but a good deal of English, and not a little of the English history, from which I have learnt the mischiefs of such kind of prosecutions as these, and the ill fate of the prosecutors. I shall go no farther back than the latter end of Queen Elizabeth's reign, at which time the Earl of Essex was run down by Sir Walter Raleigh, and your Lordships very well know what became of Sir Walter Raleigh. My Lord Bacon, he ran down Sir Walter Raleigh, and your Lordships know what became of my Lord Bacon. The Duke of Buckingham, he ran down my Lord Bacon, and your Lordships know what happened to the Duke of Buckingham. Sir Thomas Wentworth, afterwards Earl of Strafford, ran down the Duke of Buckingham, and you all know what became of him. Sir Harry Vane, he ran down the Earl of Strafford, and your Lordships know what became of Sir Harry Vane. Chancellor Hyde, he ran down Sir Harry Vane, and your Lordships know what became of the Chancellor. Sir Thomas Osborne, now Earl of Danby, ran down Chancellor Hyde; but what will become of the Earl of Danby, your Lordships best can tell. But let me see that man that dare run the Earl of Danby down, and we shall soon see what will become of him."

(Footnote omitted.) As quoted in Z. Chafee, Jr., Three Human Rights in the Constitution of 1787, p. 127 (1956).

#T2/2 Footnote 2/2

See Burdick v. United States, [/us/236/79/case.html 236 U.S. 79], [/us/236/79/case.html#94 236 U.S. 94].

#T2/3 Footnote 2/3

@Cf. [/us/3/386/case.html 3 U.S. 390]:

"That Charles 1st, king of England, was beheaded; that Oliver Cromwell was Protecter of England; that Louis 16th, late King of France, was guillotined; are all facts, that have happened; but it would be nonsense to suppose that the States were prohibited from making any law after either of these events, and with reference thereto."