Five Chiefs by John Paul Stevens

Author:John Paul Stevens [STEVENS, JOHN PAUL]
Language: eng
Format: epub
ISBN: 9780316199780
Publisher: Little, Brown and Company
Published: 2011-10-03T04:00:00+00:00

Partly because of its quality and partly because of its history, it is one of my favorite opinions.

Five years later Burger wrote a unanimous opinion in a case in which a Florida trial judge had divested a divorced mother of the custody of her three-year-old daughter because her new partner, whom she later married, was an African American. The Florida Court of Appeals had affirmed the order without opinion, and in February of 1983, the mother filed an application for a stay in our Court, seeking to maintain the status quo pending our review of the case. In my view, she had a strong case: the child had been in her custody for three years, there was no question about her fitness as a parent, and her argument that the race of her new partner did not provide a constitutionally acceptable basis for giving her ex-husband custody of the child was a strong one. On March 7, the Court entered an order denying the stay application. Volume 460 of the official United States Report, at page 1018, correctly states that I voted to grant the stay, but my own notes reflect that after our conference, Thurgood circulated a memo changing his vote to a grant. Neither my notes nor the official report contains any explanation for the majority’s decision.

We did not act on the mother’s petition for certiorari until after the summer recess, but at our conference on October 14, 1983, four of us—Bill Brennan, Thurgood, Harry Blackmun, and I—voted to grant review; the case was argued in February of 1984 and decided in April. During that period of more than a year, the order giving the father custody remained in effect.

Warren Burger’s lucid five-page opinion concluded with this statement:

Whatever problems racially mixed households may pose for children in 1984 can no more support a denial of constitutional rights than could the stresses that residential integration was thought to entail in 1917. The effects of racial prejudice, however real, cannot justify a racial classification removing an infant child from the custody of its natural mother found to be an appropriate person to have such custody.

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