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Stevens: ‘I Was Never a Fan of Labels for Justices’

June 13, 2011 at 12:00 AM EDT
It's been nearly a year since Justice John Paul Stevens left the bench after the third-longest tenure on the Supreme Court. Stevens sat down with Gwen Ifill to discuss his career, his leadership of the Court's liberal wing, why he doesn't like such labels and how his tennis game is now that he's retired.
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TRANSCRIPT

GWEN IFILL: Finally tonight, it’s been nearly a year since Supreme Court Justice John Paul Stevens stepped down from the bench as its third-longest serving justice.

Appointed by Republican President Gerald Ford in 1975, Stevens retired with a reputation as the leader of the court’s liberal wing, and he is now working on a book about his time in the company of five successive chief justices.

I sat down with Justice Stevens after he was honored today at the Law Library of Congress.

Justice Stevens, thank you for joining us.

JOHN PAUL STEVENS, former U.S. Supreme Court justice: Nice to be here. Thank you.

GWEN IFILL: When you were appointed by President Ford, you were considered to be the Republican nominee, but, by the time you retired, you were considered to be the court’s unlikely liberal.

Were you really that unlikely? Or were you really that liberal?

JOHN PAUL STEVENS: Well, I never have been a fan of trying to use labels like that to describe justices, because, very often, the justice will be liberal on one issue and conservative on another.

And it is true that I was in dissent a lot in the last several years, but I was in dissent quite a bit from the beginning, too.

GWEN IFILL: So, you just became a dissenter, professional dissenter in your time on the court?

JOHN PAUL STEVENS: Well, I actually started out doing a lot of dissenting. So — so, I’m not sure — I’m not sure how to answer that question.

GWEN IFILL: Did you change, did the court change, or did society change in your 35 years there?

JOHN PAUL STEVENS: Well, I suppose everything’s changed over the years.

My own view is that there’s been a change on the court every time a new member has been appointed. Justice White used to comment on the fact that, whenever — whenever a new justice comes on board, it’s a — different dynamics in the court, there’s a different process of approaching cases and deciding them, and so that the court definitely has changed.

However many appointments that have occurred during that years, there have been that many changes. And some of them, of course, I consider for the better, some not for the better. But the court has changed.

GWEN IFILL: Are there any cases that have been decided since you left the court that you thought to yourself, I wish I had been able to weigh in on that?

I’m thinking in particular of the case that upheld the Kansas church which picketed at military funerals. I know that was — you were quoted as saying that’s something you were not a fan of. Is that something you wish you could have weighed in on?

JOHN PAUL STEVENS: Well, I thought Justice Alito did a fine job of explaining why the decision was, I think, incorrect.

I think it didn’t actually recognize the difference between restrictions on what a person can say and the way in which it can be said and the places in which it can be said. And in the cases involving libel, for example, the court has found constitutionally protected speech by public figures that wouldn’t be protected by a private person.

And it seemed to me, in that particular case, that was a private person — it was a private speech, in the effect the audience was a private family at a funeral. Of course, they tried to — they broadcast the speech generally, but the — I thought that the — because the speech was — really was not this kind of public speech that was protected in a defamatory context, I didn’t think it should be protected when it was a tort aimed at harming a particular — what the jury found was aimed at harming a particular family that were just attending their own funeral.

And it seems to me that it was quite wrong to treat that as though it were a speech in a public arena.

GWEN IFILL: And Justice Alito was the lone dissenter on that…

JOHN PAUL STEVENS: He was the lone dissenter.

GWEN IFILL: And you would have joined him?

JOHN PAUL STEVENS: I would have joined Justice Alito, definitely.

GWEN IFILL: One of the things you are most famous for is your stand on the death penalty. After years of seeming to uphold, or at least sitting on the bench while it was upheld, you changed your mind about that. Why?

JOHN PAUL STEVENS: Well, I really don’t think it’s correct to say I changed my mind about it.

I think what happened over the years since 1976 is that the court’s capital punishment jurisprudence changed dramatically in several respects. I think that the court’s tolerance of procedural — questionable procedures actually undermined the basis for upholding the death penalty that Potter Stewart and Lewis Powell and I relied on in our controlling opinions back in 1976.

GWEN IFILL: The court is now seen as — seen as famously divided. But the division seems to be less partisan than it seems it to be those who believe in original intent and those who believe of the law as a living organism, which is where you come down.

JOHN PAUL STEVENS: Well, you know, even that division is not as clear-cut as you might say…

GWEN IFILL: Really?

JOHN PAUL STEVENS: … because everybody agrees that it’s appropriate to do everything we can to understand the original intent behind both statutes and constitutional provisions.

But the notion that that can provide the answer in all cases is what is incorrect. It sheds light on all cases, but it is just one of the tools you have to use in trying to answer the question. And, of course, one of the ironies is that those who think that original intent answers all the questions also, somewhat inconsistently, don’t want to look at legislative intent, which is designed to find out what the draftsmen of a legislature intended.

So, there is some tension there. But the — I think it’s wrong to use that as the solution to all constitutional questions.

GWEN IFILL: So many people think — look at the 5-4 decisions of the court and say it’s just partisanship, pure and simple.

I know that you never used to go to State of the Union addresses. You didn’t think that was necessarily the appropriate role for a justice?

JOHN PAUL STEVENS: When Earl Warren was chief, there was once — President Johnson gave an address in which he supported the Civil Rights Act, I don’t know, the ’64 act or ’67 act.

But, in any event, the court rose and clapped vigorously to indicate approval of what was going on. And there was an editorial in one of the papers the next day saying that, well, the United States Supreme Court just approved the constitutionality of the Civil Rights Act.

And, so, the members of the court decided after that that they shouldn’t indicate their views in response to anything the president might say, because it might be misinterpreted. And that led to the practice of the justices sitting mute, silent, while everybody else is cheering and responding to speeches.

And you feel kind of silly.

(LAUGHTER)

JOHN PAUL STEVENS: You have to be careful about not revealing your response. So, a number of times, I thought it not the most desirable way to spend my time.

GWEN IFILL: You’re writing a book about your experience with five justices, either as a clerk or as an advocate or as a colleague on the bench. Why are you writing that book? What do you feel the need to say?

JOHN PAUL STEVENS: Well, you might say there are two or three reasons.

One is that I attended a number of functions in the — during the last year in which people have asked me questions. And one question I got over and over again is, well, you served with three chief justices. Comment on their differences.

And I thought well, if they’re interested in three, maybe I can give them an answer for all five that I knew. And, so, I got the idea as a result of those sessions. And I have to confess that, in my work on the court, I enjoyed writing opinions. I find that it’s work that I would just get enthusiastic about it.

And so I enjoy writing now, so it gave me an opportunity to do some writing about those five chief justices, both my own personal regulation recollections about them, and that gives me an opportunity to make some comments about some of their jurisprudence. And some of it, I agree with, and some of it, I disagree with.

GWEN IFILL: Does Bush v. Gore play a role in your retelling of this, your time on the court?

JOHN PAUL STEVENS: Very minor.

GWEN IFILL: Really?

JOHN PAUL STEVENS: You are talking about the book?

GWEN IFILL: Mm-hmm.

JOHN PAUL STEVENS: Yes, very, very minor.

I said — I wrote it in the opinion. So, I tried not to repeat in the book things I have written in opinions…

GWEN IFILL: Right.

JOHN PAUL STEVENS: … rather, to try to have just more recollections about different things I worked on.

GWEN IFILL: I think a lot of people would be curious about your recollections of that period.

JOHN PAUL STEVENS: I hope so.

GWEN IFILL: OK.

(LAUGHTER)

GWEN IFILL: One final question. I know you have been off — you’re famous for playing tennis all the time and for being a very active, active justice and retired justice. Are you still playing tennis? How is the game going?

JOHN PAUL STEVENS: Well, my tennis game is not what it used to be.

But I have to confess that I’m grateful to a very good friend with whom I played for years that the fact that I don’t run as well as I used to and I have a bum knee now has instituted a new procedure that we follow without ever discussing it all. He hits the ball to me. He doesn’t make me run for it.

(LAUGHTER)

JOHN PAUL STEVENS: I can make him run as much as possible.

But as part of the — in order to prolong the game, he takes — he doesn’t take advantage of the fact that I can’t move the way I like to.

GWEN IFILL: It’s a pretty good deal.

JOHN PAUL STEVENS: Yes.

(LAUGHTER)

GWEN IFILL: Justice Stevens, thank you so much.

JOHN PAUL STEVENS: Well, thank you.