Justice Stevens: An Open Mind On A Changed Court

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The U.S. Supreme Court opens its new term Monday, with new Justice Elena Kagan sitting in the junior justice's seat at the far end of the bench. For the first time in its history, a third of the nine-member court is female, and all of its justices are either Catholic or Jewish -- no Protestants. Also, for the first time in 35 years, Justice John Paul Stevens is not there.

The 90-year-old justice retired in June; this summer, he sat for an interview in his chambers. During a lengthy and wide-ranging conversation, Stevens said he regrets one vote: his 1976 vote to uphold the death penalty. He also said he remains undecided about whether it would be a good idea to allow TV cameras in the Supreme Court; gently chided the Senate for the way it conducts confirmation hearings; and said he has often changed his mind about issues after reading the briefs and hearing oral arguments.

To understand the arc of history Stevens has witnessed, you need only know that one of the artifacts in his office is a scorecard from the famous 1932 World Series game in which Yankees hitter Babe Ruth, playing the Chicago Cubs in their home park, pointed to center field and then hit a home run there. The blast was a blow to a 12-year-old John Paul Stevens, sitting in the stands with his father.

Nearly three-quarters of a century later, at age 85, Justice John Paul Stevens threw out the first pitch at a Cubs game.

"I used to be able to throw the ball pretty well," he said. But he quickly realized he needed to brush up his skills. He spent weeks practicing and when the big day came, "I pretended … that I was out in left field trying to get a guy out at home. It worked out fine."

A Competitor, And A Teammate

Even now, there is nothing about Stevens that suggests he is 90. He still plays singles tennis several times a week, swims, plays golf and contract bridge, and has a competitive streak belied by his gentle demeanor.

One of his colleagues recalls encountering Stevens early one morning in the Supreme Court garage. Stevens was still in his tennis clothes, and when the other justice asked how the game went, Stevens jumped up and down like a kid, declaring, "I creamed him."

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That is not the kind of behavior usually seen from the Midwesterner often called "a judge's judge." Colleagues, clerks and counsel all describe him as a man of "unaffected decency," who is "unfailingly polite and gracious." So skilled is he at building relationships on the court that other justices have said they would like to bottle his talent. During the interview in his chambers, he chuckled about the notion that he is some sort of great tactician.

"There's no grand strategy or anything like that; it's just part of the way I think judges should work together on a multi-judge court," he said. "One of the things that makes this a nice place to work is the custom of shaking hands before you go on the bench. It's a funny thing that that very minor ceremony starts everybody off in a collegial manner, and it stays right there."

Unlike many court commentators, Stevens does not attribute political motives to colleagues with whom he disagrees. "The wonderful thing about this institution is that we do disagree about very profound things," he says, but every justice "accepts the fact that his or her colleagues are doing the best job they can consistent with their own understanding of the law and the Constitution."

That doesn't mean that Stevens and his antagonists on the court have disdained strong language. In January, when a new conservative majority struck down a 100-year-old ban on corporate spending in candidate elections, Stevens wrote in dissent that the court's decision would "cripple the ability of ordinary citizens, Congress and the States to adopt even limited measures to protect against corporate domination of the electoral process."

In 2008, when the court, including Stevens, declared that detainees at Guantanamo have a constitutional right to judicial review of their detentions, Justice Antonin Scalia, in dissent, said the majority opinion "will almost certainly cause more Americans to be killed."

With a tiny twinkle in his eye, Stevens says that Scalia "has written a number of opinions in which he has made very seriously dire predictions about what would happen, and I think by and large those things did not happen."

A Fundamental Dispute

Stevens and Scalia have gone at each other on many subjects, but their core disagreement is over Scalia's espousal of originalism -- the idea that the Founding Fathers intended the Constitution to mean only what it meant at the time of enactment, no more and no less. Or, as Scalia puts it, "the Constitution that I interpret and apply is not living, but dead."

Heard On 'All Things Considered' Law Listen To Part 2 Of Nina Totenberg's Interview With Justice Stevens Justice Stevens: Life On The High Court Listen · 8:59 8:59

Stevens disagrees. "To suggest that the law is static is quite wrong," he says. Stevens argues that "the whole purpose was to form a more perfect union, not something that's perfect when we started. We designed a system of government that would contemplate a change and progress."

This clash of views is exemplified in a 1990 opinion Stevens wrote, which invalidated the Illinois patronage system as a violation of employees' First Amendment rights to freedom of association.

Stevens notes that when he first encountered the question, he thought the claim had no merit. After all, as Justice Scalia would subsequently observe, patronage existed at the time the republic was founded. But Stevens, upon examining the question, reached a conclusion exactly opposite of what he originally thought.

"It did persuade me that some things that have been part of our law for a long, long time are not necessarily correct interpretation of the Constitution," he said. "The best example of that, of course, is racial discrimination. ... But the patronage system, it seemed to me, was a misuse of government power; the government has a duty to act impartially."

In his nearly 35 years as a justice, Stevens authored some 400 majority opinions for the court on almost every issue imaginable -- from national security and Guantanamo to immigration; from abortion to obscenity; from school prayer to campaign finance reform; from term limits to the relationship between the federal and state governments.

During his tenure, he was seen as an increasingly respected and influential justice, a man beloved by his colleagues for his decency, his unassuming nature, and his tough inner core. Appointed by President Ford, Stevens was labeled a moderate conservative in his first decade. But by the time he retired, Stevens was seen as the court's most liberal member. So did he change or did the court?

"I think primarily the court has changed," says Stevens, referring to the composition of the court. But he acknowledges that on some issues, his views have changed as he has "learned more."

Debating The Death Penalty

Both the change in Stevens and the change in the court are illustrated by the issue of the death penalty. When he first joined the court, he voted to revive capital punishment, overturning a de facto moratorium imposed by the court four years earlier.

"I thought at the time ... that if the universe of defendants eligible for the death penalty is sufficiently narrow so that you can be confident that the defendant really merits that severe punishment, that the death penalty was appropriate," he says. But, over the years, "the court constantly expanded the cases eligible for the death penalty, so that the underlying premise for my vote has disappeared, in a sense."

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In short, as moderate conservatives retired and were replaced by more hard-line conservative justices, the court changed the rules, he says. "Not only is it a larger universe, but the procedures have become more prosecution-friendly."

The court, he notes, has become more permissive in allowing prosecutors to object to seating jurors who have qualms about the death penalty. The result is that instead of getting a random sample of jurors, jury panels are more supportive of the death penalty. In addition, the court now allows the relatives of crime victims to testify during the penalty phase of a capital trial. These so-called victim impact statements were once ruled too incendiary to be permissible, but four years later, a more conservative court reversed the decision. All of this, says Justice Stevens, has changed the nature of the death penalty as he and the court envisioned it in the 1970s.

These subsequent decisions tend to "load the dice in favor of the prosecution and against the defendant," Stevens says. "I really think that the death penalty today is vastly different from the death penalty that we thought we were authorizing. And I think if the procedures had been followed that we expected to be in place, I think I probably would've still had the same views." Namely, he would have continued to favor a narrowly circumscribed death penalty.

Instead, he views his vote to uphold capital punishment in 1976 as the one he regrets during his tenure. It is "the one vote I would change," he says. Calling the decision "incorrect," Stevens says the 1976 court "did not foresee how it would be interpreted."

Father's Brush With The Law

Justice Stevens disavows the notion that his concern for the rights of criminal defendants might stem from his own family's experience. His father, who built and ran what was then the largest hotel in Chicago, was prosecuted for embezzlement and convicted. Facing 10 years in prison, he was subsequently exonerated by the Illinois Supreme Court, which unanimously reversed the conviction, declaring that the alleged crime was a mistaken investment and that there was "not one scintilla of evidence of concealment or fraud."

Stevens acknowledges that he has thought about whether this experience affected his views. But, he adds, "I don't really think it had any impact whatsoever on me, to tell you the truth."

His voice cracking with emotion, Stevens continues: "And the reason I say that is that at the time I never really considered it being a realistic possibility that he would ever go to jail. Because I knew the kind of man that he was. He simply was not capable of either a dishonest or dishonorable act."

Indeed, Stevens says, after the decision, he still planned a career teaching English, and only changed his mind years later.

A Contrarian With An Open Mind

Stevens is feisty in defending both his majority opinions and some of his famous dissents, as well. Flag-burning? He still thinks the court was wrong to strike down a law making flag desecration a crime. Bush v. Gore? He still thinks the court overstepped its authority and should have left the recount to the state of Florida.

As for the court's recent ruling allowing corporations and unions to spend unlimited amounts on candidate elections, Stevens thinks it was dead wrong -- and, indeed, still doesn't think that money is the same thing as speech. "Can you hear it talk? Can you read it? [Money is] simply not speech," he says. "And I have to confess that my own views are that there is an interest in trying to have any debate conducted according to fair rules that treat both sides with an adequate opportunity to express their view. We certainly wouldn't, in our arguments in this court, give one side a little more time because they could pay higher fees to hire their lawyers, or something like that."

But Stevens still has not made up his mind about one Supreme Court issue: whether the court should allow television cameras to record and broadcast the arguments.

On the plus side, he says, "I think you develop more respect for the court when you see it -- how it actually handles oral arguments -- and you see that the justices are prepared and have thought about the problems and so forth."

But introducing television into a new forum can often have "an adverse impact on the process," Stevens says, pointing to Senate confirmation hearings for judges as an example. Ultimately, he says, "I think there is a very serious risk that if you introduce television into the Supreme Court arguments, it may have an unintended consequence that we really don't foresee right now."

A Different Approach



One of the hard things to fathom about a justice who is Stevens' age is how he discards the beliefs he grew up with when other, younger justices do not. Nearly a quarter-century ago, when the Supreme Court upheld a Georgia law that made it a crime for two adults of the same sex to engage in consenting sexual conduct in the privacy of their homes, Stevens was among the dissenters.

When he joined the court, Stevens says, he didn't have any friends whom he knew to be gay, but he knew the first time he saw the issue that it was a tough call. When the court upheld anti-sodomy laws in 1986, Stevens dissented. Seventeen years later, he was part of the court majority that reversed that ruling.

"It's just part of the job where you take the cases one at a time," he says, "and I have found very often, I'm surprised [that] the result I come out with is not necessarily what I assumed in advance."

For Stevens, writing the first drafts of his opinions himself, instead of delegating the task to law clerks as many of his colleagues do, helped with that process. In writing it out, Stevens says, "your reasoning will either make sense or it won't. And if it doesn't, you change your vote, or you change your whole approach."

After the first draft was done, he would give it to his law clerks. "Their job is to prevent me from looking like an idiot," he says with a laugh.

The law clerks checked Stevens' facts and sometimes made only minor changes. But on other occasions, they rewrote his draft entirely -- a rewrite that he sometimes embraced in whole or part, and sometimes rejected -- in the nicest way possible, of course.

The important thing, Stevens says, is that in examining a question, he often changes his mind. What at first blush may look like a simple case with an easy answer turns out to be something quite different -- a point, he observes, that seems to be lost at Senate confirmation hearings.

"The senators sort of expect the new nominee to know all the answers now," he says. "But this is a job in which you get briefs from lawyers, and you start out with sort of an expectation of being taught a little bit about the issues before you have to decide. And there's an awful lot you learn on almost every case. You don't know all the answers when you start. And if you think you do, you're kidding yourself."

So, is Stevens sad to have left the court?

"I'm both happy and sad," he says. "I have mixed feelings about it, because I know I'll miss the work. I really, really love the job. But I'm also looking forward to having not so many deadlines to meet."