Author Interviews
10:45 am
Wed October 19, 2011

Justice Stevens Reflects On The Court And Its Chiefs

Originally published on Wed October 19, 2011 1:15 pm

After 35 years serving on the Supreme Court, Justice John Paul Stevens retired last year. Appointed by President Gerald Ford in 1975, Stevens was the third-longest-serving justice in the court's history. Now 91, he spends his days playing tennis, lecturing and writing. But instead of legal briefs and opinions, Stevens is now sharing personal stories from his time on the Supreme Court.

His newly released memoir, Five Chiefs: A Supreme Court Memoir, is about the five Supreme Court chief justices he personally knew: Fred Vinson, Earl Warren, Warren Burger, William Rehnquist and John Roberts. Stevens clerked during Vinson's appointment, practiced law during Warren's tenure, and served on the court with Burger, Rehnquist and Roberts.

In a wide-ranging conversation with Terry Gross on Wednesday's Fresh Air, Stevens discusses his career as well as his views on some of the decisions handed down from the court during his 35 years on the bench.

In his final decade on the court, some of his best known opinions were his dissenting ones — in Bush v. Gore, which stopped the Florida recount; and in Citizens United v. Federal Election Commission, which ended restrictions on corporate spending in elections.

Stevens also wrote the opinion for the court in two cases that successfully challenged the Bush administration's approach to the war on terrorism: Rasul v. Bush, which said detainees at Guantanamo had the right to challenge their incarceration in American courts, and Hamdan v. Rumsfeld, which ruled against the Bush administration's plan to use military tribunals at Guantanamo. Legal journalist Jeffrey Toobin describes those decisions as "the summit of Stevens' achievements on the bench."


Interview Highlights

On the role of the chief justice

"He has the same role as every other justice in the sense that he does his best to persuade others to share his views, and each of the rest of the justices do the same thing. If he ends up being one of the five [justices] in the majority, he has the same responsibility that he has if there's a unanimous opinion. Namely, he assigns the author of the opinion to express the views of the majority."

On becoming more liberal over the course of his time on the Supreme Court

"Those terms are a little bit misleading because you have so many issues that you address as a member of the court that on some issues you might be regarded as, to use your word, as a liberal, and on others you might be regarded as a conservative. And it's difficult to place a simple label on the entire work product of a member of the court."

On his dissenting opinion in the Citizens United ruling

"As I explain in the opinion, there were narrower grounds that would not have caused any major changes in the law. And that could have been used to decide the case. And having explained that, I then get into a discussion of why I thought that the particular cases that the court overruled in that case had been correctly decided and should not be overruled. ... The court has held, I think incorrectly, that the First Amendment protects the right to use money just as though money were speech. And of course, expenditures for campaigns go for many things other than speech, such as travel expenses, wardrobe expenses, public polls. In the Watergate incident, some of that campaign money was used for illicit purposes and should not be regarded as protected by the First Amendment."

On the term 'activist'

"Whenever a court makes decisions that are not necessary in order to dispose of the particular issues of the case, the word 'activist' may apply to that work. But that's not a criticism of the impartiality of the justices on the court."

On the right to bear arms

"I think it's fairly clear that the framers expected the states to have the last say on what kind of use of the people to keep and bear arms should be authorized. They certainly didn't expect, in my judgment, federal judges to have word on what kinds of firearms states could authorize for themselves."

On the Second Amendment

"The more that you looked at the text and the drafting history of the Second Amendment, the more you come to the conclusion that the current court's reading is much broader than what the draftsmen expected."

On his robes

"That's the one tax deduction that judges have, if I can remember. If you buy new robes, that's a business expense and can be deducted."

On the Bush v. Gore decision

"I guess the thing that surprised me the most was the fact that any justice thought there was irreparable injury shown by the petitioners that would justify the action that was taken."

On his viewpoints evolving over time

"Any judge or justice has views that evolve over time because he becomes more and more educated and better able to do certain things. There's been some change in my views about the death penalty, but I think there's more of a change in the jurisprudence of the court that made me eventually reach the conclusion that the death penalty, as it is presently administered, is unconstitutional."

On whether a decision is constitutional vs. whether it is a wise policy

"Chief Justice Burger and Justice Blackmun, for example, originally voted to uphold the constitutionality of the death penalty. Justice Blackmun later changed his views on that particular issue. But both of them were very clear in believing that it was not wise policy. They both came from Minnesota, which does not have a capital punishment statute, and I think they were not fans of the death penalty."

On being in the position of upholding the constitutionality of a ruling while believing that it's not good policy

"The example that comes to mind most readily is [Gonazales v. Raich], a case that we had 7-8 years ago involving the constitutionality of federal enforcement against the use of marijuana in California. [It was] after California passed a statute allowing its use for medical purposes. ... The women involved in the case, who grew marijuana in their own backyard and had strong medical justification for using the drug — I thought it was most unwise to prohibit them from doing so, but I think that it was equally clear that the federal constitution did authorize the federal government to enforce the statutes on the books."

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Transcript

TERRY GROSS, host: This is FRESH AIR. I'm Terry Gross. My guest, John Paul Stevens, was a Supreme Court justice for 35 years, making him the fourth-longest-serving justice in the court's history. He was appointed by President Ford and retired last year at the age of 90.

In his final decade on the court, some of his best known opinions were his dissenting ones: in Bush v. Gore, which stopped the Florida recount; and Citizens United, which ended restrictions on corporate spending in elections. Stevens also wrote the majority opinion for the court in two cases that successfully challenged the Bush administration's approach to the war on terror: Rasul v. Bush, which said detainees at Guantanamo had the right to challenge their incarceration in American courts; and Hamden versus Rumsfeld, which ruled against the Bush administration's plan to use military tribunals at Gitmo.

Legal journalist Jeffrey Toobin describes those decisions as the summit of Stevens' achievements on the bench. Justice Stevens has written a new memoir called "Five Chiefs" about the five chief justices he's known, including the three he served with: Warren Berger, William Rehnquist and John Roberts.

Justice Stevens, welcome to FRESH AIR. It's an honor to have you on the show. Is it something of a relief to be retired and not have the weight of having to make these really important, you know, opinions on really important cases that will affect the future of the country?

JOHN PAUL STEVENS: The answer is yes.

(SOUNDBITE OF LAUGHTER)

STEVENS: It's definitely a relief, although I do miss the work, which I enjoyed very much, but it is a relief.

GROSS: Now, you were nominated to the court by President Ford. You began serving in 1975, and at the time, you were considered a moderate Republican. By the time you left, you were described by Walter Dellinger as the chief justice of the liberal Supreme Court, of the liberal branch of the Supreme Court. Do you think you became more liberal over the time that you served in the court?

STEVENS: Well perhaps, but those terms are a little bit misleading because you have so many issues that you address as a member of the court that on some issues, you might be regarded as, to use your word, as a liberal, and on others, you might be regarded as a conservative. And it's difficult to place a simple label on the entire work product of a member of the court.

GROSS: One of your most famous dissenting opinions was also one of your last. It was the Citizens United case, for which you wrote a 90-page dissenting opinion. That's really long, isn't it?

(SOUNDBITE OF LAUGHTER)

STEVENS: That is long, and that's probably why there are a lot of people who haven't bothered to read it all.

GROSS: So this is the decision that overturned constraints on corporate spending and political campaigns and said that limits on corporate spending infringed on corporations' freedom of speech. Why were you so angry about this decision?

STEVENS: Well, I don't know if angry is the word or not. I thought it was incorrect in several respects. At the beginning of my 90 pages, I explain why the court would have been wiser to decide the case on narrower grounds because I think it's always a good craftsmanship in administering the law to decide cases on narrow grounds, particularly constitutional cases, when you have the opportunity to do so.

And as I explain in the opinion, there were narrower grounds that would not have caused any major change in the law that could have been used to decide the case. And then having explained that, I then get into a discussion of why I thought that the particular cases that the court overruled in that case were - had been correctly decided and should not be overruled.

GROSS: So you're talking about deciding on narrower terms, and you write that you saw it as conservative judicial activism when the court sent back the lawyers in the Citizens United case and asked them to bring a more expansive version of the case and to address broader issues about the relationship of corporations to the First Amendment.

And the way the Supreme Court decided the case, infringing on corporate spending was seen as infringing on a corporation's right to free speech and also equating a corporation's right to free speech with an individual's right to free speech. Correct me if I got any of that wrong.

STEVENS: You've got it right.

(SOUNDBITE OF LAUGHTER)

GROSS: OK. So were you surprised to see the Supreme Court equate a corporation's right to free speech with an individual's right to free speech?

STEVENS: Well not entirely because some years ago, Justice Powell had written an opinion in the Bellotti case, which held that a corporation does - the First Amendment does protect a corporation's right to communicate with the public on issues of general public interest. But in that opinion, he carefully distinguished speech about general issues from election campaigns.

See, an election campaign in many respects is like a debate between two adversaries, which some believe, including actually me, that it's wise to have rules that make the debate fairer to both sides and lead to a reasoned decision rather than one based on how much money one has or some non-reasoned factor.

GROSS: One of the divisions within the Supreme Court now is between the people who describe themselves as originalists in their interpretation of the Constitution, like Justice Scalia and Justice Thomas, and others who see the Constitution as an evolving document that needs to be interpreted in its time. And I think you and Justice Breyer would fall in that category. Again, correct me if you feel I'm misrepresenting anything.

So I'm just wondering about the whole idea of originalists. Is that something - is that a point of view that you think has always existed during your years on the Supreme Court, or is that something that's relatively new?

STEVENS: Well, actually the term can be used in many ways, and every member of the court is an originalist in the sense that he or she always tries to have as complete an understanding as possible of the reasons that motivated the drafting of a particular provision in the law, whether it be a statute or a constitutional provision. That's part of the general study that one goes through in trying to resolve a particular case.

Most of us, however, do not regard the so-called original understanding as the complete answer to all the issues. It's one of the factors that are considered.

GROSS: So let's jump to the D.C. versus Heller decision, which was a gun control decision. Do you want to just explain what that decision said?

STEVENS: Well, it held that the Second Amendment protects the right of a homeowner to possess a handgun in his or her home.

GROSS: And that, you say, just re-interpreted the Second Amendment. In what way?

STEVENS: Well, there had been a square decision about - I forget the exact year now, holding to the contrary. It wasn't on exactly the same facts, but it held that the amendment protected military uses of firearms as the language of the amendment itself.

GROSS: The well-regulated militia language.

STEVENS: Well, the militias and the right to bear arms, and the text of the amendment makes - refers specifically to military uses, and that had been the basic limitation in the law prior to that decision.

And I think it's fairly clear that the framers expected the states to have the last say on what kind of use of the people to keep and bear arms should be authorized. They certainly didn't expect, in my judgment, federal judges to have last word on what kind of firearms states could authorize for themselves.

GROSS: But what about the well-regulated militia part and the difference between the originalists and others on the court?

STEVENS: Well, the - I don't know if it's just originalists or not, but the well-regulated militia in the preamble to the Second Amendment identifies the purpose of the provision, and it seems to me it conveys a very strong message to the ordinary reader, whether he's an originalist or whatever might be a different form of interpretation, that they were basically concerned about protecting the state militias, not protecting individuals or hunters or things like that because at the time there were state constitutional provisions out there that were not so limited by the phrasing. They talked about the right to use guns for hunting and other purposes.

GROSS: I guess I'm wondering if it seems a little topsy-turvy to have you arguing: No, literally the Constitution said the guns are for a well-regulated militia and having the originalists saying no, no, no, the rights are really broader than that.

STEVENS: Well, that's exactly right. I think it's - it's a very ironic decision because it seems to me that the more you looked at the text and the drafting history of the Second Amendment the more you come to the conclusion that the current court's reading of the amendment is much broader than what the draftsmen expected.

GROSS: If you're just joining us, my guest is John Paul Stevens, who was a Supreme Court justice from 1975 until 2010. Now he's written a memoir called "Five Chiefs: A Supreme Court Memoir," and it's about the chief justices who he knew.

A question about Bush v. Gore. You describe the story in the book. It's - the Florida recount is happening in this contested election, and the Bush camp wants to take it to the Supreme Court and have the Supreme Court halt the recount. And as that process is beginning to be set in motion, you run into Justice Breyer at a Christmas party, and in casual conversation, you both agree this is a kind of frivolous case, it doesn't stand a chance of actually being accepted by the Supreme Court.

The Supreme Court isn't going to hear it. And then much to your surprise, the Supreme Court hears it and rules in favor of the Bush camp and stopping the Florida recount. What surprised you most in the argument that was made by the justices who wanted to not only hear the case but stop the recount?

STEVENS: Well, I guess the thing that surprised me most was the fact that any justice thought that there was irreparable injury shown by the petitioners that would justify the action that was taken.

GROSS: So what would - in your interpretation, what would irreparable injury have to be? What qualifies irreparable injury?

STEVENS: Well, I'm not sure what would qualify as irreparable, something that would have precluded an understanding of what the results of the election were, which certainly was not even argued in that case.

GROSS: So because this was such a big decision, and the country was so divided, and the election was so close, was there a lot of tension in the court while that decision was in process?

STEVENS: I don't think I should comment on what went on within the court. I can just say that it was consistent with what I said at the end of the brief. I think that the justices respected one another for the views that they expressed.

GROSS: It strikes me of all the Supreme Court decisions that I've ever tried to talk about on the air with a justice - and I've only interviewed you and Justice Breyer - but, like, that one seems like I don't want to go there. You know, that seems like the decision that justices, like, really don't want to talk about in public.

STEVENS: I suppose that's right. You know, and of course I don't think it's been a decision that has been cited since it was handed down.

GROSS: Didn't the decision say it shouldn't be cited, that this was like a one-off, that this was meant to apply to this election only?

STEVENS: Well, there's language in the opinion that I suppose should be interpreted to say that. But again, I don't have the opinion in front of me now, and I wouldn't want to comment on that.

GROSS: OK. So, you know, the question has come up with some cases: Should Justice Thomas be recusing himself because of his wife's participation in political activities? And I'm wondering, if I may go back to the Citizens United case, if you think that's an example of a case that Justice Thomas perhaps should have recused himself from because his wife was active in politics in a way that could relate to a political campaign and perhaps was a member of a group that got corporate funding.

STEVENS: No, I don't. I don't think there's the slightest danger that Clarence Thomas' views or vote in the case was affected by his wife's activities or her - whatever might have been said about her. I have total confidence in Justice Thomas's independence in the case.

GROSS: So you don't think there's any cases that he should have recused himself from?

STEVENS: No.

GROSS: OK. Now, when you put on your judicial robe, did it transform you in any way? And I'm thinking, you know, how actors always say when they put on a certain costume, they feel more in character, it helps them get into the role. Did putting on the judicial robe give you the sense of, you know, gravity of the occasion?

STEVENS: Well, I frankly hadn't thought of it that way, but that may well be true because it is a solemn occasion when you get ready to go on the bench and confront the issues that you have to confront as a judge or a justice.

GROSS: And are the robes, like, custom made for each judge, or do you go to, like, a robe supply store and just pick out your size?

STEVENS: That's the one tax deduction that judges have, if I can remember.

(SOUNDBITE OF LAUGHTER)

STEVENS: If you buy new robes, I think that's a business expense and can be deducted. But in fact, my original robes were given to me by my former partners when I went on the bench, and I continued to wear them until they got perhaps shabbier than they should have.

GROSS: My guest is retired Supreme Court Justice John Paul Stevens. His new memoir about the five chief justices he's known is called "Five Chiefs." This is FRESH AIR.

(SOUNDBITE OF MUSIC)

GROSS: If you're just joining us, my guest is retired Supreme Court Justice John Paul Stevens. He stepped down last year after serving in the court since 1975, when he was appointed by President Ford. His new book is a memoir called "Five Chiefs" about five Supreme Court justices who he knew or worked with.

Do you feel like your judicial philosophy changed or evolved over your many years in the court?

STEVENS: Well, it definitely evolved in the sense that I learned more about the law and more about the Constitution, more about life in general so that any judge or justice has views that evolve over time because he becomes more and more educated and better able to do certain things that he could've done at an earlier time.

GROSS: Can you give us an example of an issue in which your view or your judicial philosophy changed?

STEVENS: Well, I - there's been some change but - in my views about the death penalty, but I think there's more of a change in the jurisprudence of the court that made me eventually reach the conclusion that the death penalty, as it is presently administered, is unconstitutional - a bit more specifically, a most unwise practice.

What were the judicial changes you're talking about?

Well, I suppose one of the major changes was expanding the category of cases in which the defendant is eligible for the death penalty because our decisions back in 1976, I guess it was, reinstating - upholding the constitutionality of the death penalty in three specific states rested largely on Justice Stewart's view that administering the death penalty should not be similar to being struck by lightning, as it was then, so much so random in its application.

And there were other changes in the law. The court relaxed the standards for service on the jury to allow the prosecutor to select jurors who were more likely to impose the death penalty than if they were done on a more random basis.

There were changes in the rules on admissibility of evidence, particularly the Payne decision, which allowed the introduction of what they call victim impact evidence, which had been squarely ruled inadmissible in two earlier cases, which substitutes emotion rather than reason for the basis for imposing the death penalty, and then perhaps others that don't come to mind right away.

GROSS: So there's one decision in which you - although you believe the death penalty was unconstitution(ph), you said that you respected the Supreme Court precedence that allowed capital punishment. So at those times when your belief about a policy is different than your belief about, you know, precedent and constitutionality, what's that experience like for you?

STEVENS: Well, if I understand the question correctly, there is a vast difference between the issue as to whether the death penalty is constitutional and the question of whether it's wise policy. And I think - I mention, I think in the book, or I certainly have mentioned in other occasions, Chief Justice Berger and Justice Blackmun, for example, originally voted to uphold the constitutionality of the death penalty.

Justice Blackmun later changed his views on that particular issue. But both of them were very clear, at least as I recall, in believing that it was not wise policy. They both came from Minnesota, which does not have a capital punishment statute, and I think they were not fans of the death penalty.

GROSS: So have you been in that position, where you're upholding the constitutionality of something, although you think it's bad policy?

STEVENS: Yes, very definitely. The example that comes to mind most readily is a case that we had seven or eight years ago involving the constitutionality of federal enforcement against the use of marijuana in California after California passed a statute allowing its use for medical purposes and particularly for the women in that particular case who grew their own marijuana in the backyard, I think it was, and they had strong medical justification for using the drug. I thought it was most unwise to prohibit them from doing so, but I think that it was equally clear that the federal Constitution did authorize the federal government to enforce the statutes on the books.

GROSS: OK, thank you so much for talking with us. And thank you for your service to the country.

STEVENS: Thank you very much. I've enjoyed our conversation.

GROSS: Justice John Paul Stevens' new memoir "Five Chiefs" is about the five chief justices he's known. He retired from the bench last year. You can read an excerpt of his book on our website, freshair.npr.org. I'm Terry Gross, and this is FRESH air. Transcript provided by NPR, Copyright NPR.