Thursday, April 15, 2010

You Were Right, Professor Allen

The announcement this week of the retirement of John Paul Stephens from the United States Supreme Court brought to mind a Messiah concert I attended at the University of Michigan the first Sunday in December, 1974. I was brought up in a family with no knowledge, indeed, scorn, of classical music. My in-laws, however, loved classical music and had made it a family tradition to make the two and one-half hour trek every December from Bay Port to Ann Arbor to hear Handel's Messiah.

In December, 1994, I was in my first semester of law school at the University of Michigan and was taking a criminal law course under the legendary Francis A. Allen, a former dean of the law school, author of a definitive textbook on criminal law and principal author of the Illinois Criminal Code of 1961. I discovered as the concert was getting started that we were sitting directly in front of Professor Allen.

I was a shy, young student, awed by the professors and my peers at the law school, intimidated from opening my mouth in class. So, all through the first part of the Messiah, I worried about Professor Allen sitting behind me. He probably didn't even know me, I was in a large section of about 100 students and he had three sections of first year students; I had never been called upon or spoken in his class and he would probably never know the difference if I just pretended I didn't know who he was and ignored him. On the other hand, he was very bright and what if he did recognize me and would be offended if I didn't speak to him.

When intermission came and everyone stood up to stretch, I bravely turned around, offered my hand, introduced myself and told him I was in one of his first year criminal law sections. He was very gracious, didn't act like I was a stranger, but it quickly became awkward standing there facing each other with nothing really to say to each other, but unable to walk away.

Out of the blue, Professor Allen started talking about John Paul Stephens, whom Gerald Ford had just nominated for the Supreme Court. There was concern in the legal community because he would replace Justice William O. Douglas, who had established himself as the leading liberal, probably of all time, on the court. Would Ford's pick, a relatively unknown Republican, undermine all the good work the Warren court had done in the area of privacy, civil rights and criminal rights? Professor Allen had spent time in Chicago, teaching at Northwestern and the University of Chicago and knew Mr. Stephens. I don't remember exactly what was said in our conversation, but I have a distinct memory of Professor Allen saying, "He's going to be all right."

It's ironic to now hear the media regularly refer to Mr. Justice Stephens as a liberal. He is not a liberal in the mode of Justice Douglas, and he made several rulings with which I disagree. He is a common sense moderate, however, who did not allow partisanship to enter into his decisions. His denunciation of the five Republicans on the court, who stopped the Florida recount in 2000 and ordered George W. Bush installed as president, because continuing the recount would undermine his "credibility," makes him a hero, no matter how much I disagreed on other issues.

You were right, Professor Allen. Mr. Justice Stephens turned out all right.


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