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How retired Supreme Court Justice Stevens would amend the constitution

April 21, 2014 at 6:25 PM EDT
Former Supreme Court Justice John Paul Stevens talks to Judy Woodruff about his new book, “Six Amendments: How and Why We Should Change the Constitution.” In his book, the 94-year-old liberal justice calls for major changes to the Constitution on issues such as the death penalty, firearms, redistricting and campaign finance.

JUDY WOODRUFF: Now: A former Supreme Court justice takes on the U.S. Constitution and the court he stepped away from.

John Paul Stevens was known in his 35 years in office for views that evolved from the time he was appointed by Republican President Gerald Ford to one of the court’s most outspoken liberal voices.

Today, four years after retiring, the 94-year-old continues to make waves with an ambitious new book. It’s titled “Six Amendments: How and Why We Should Change the Constitution.”

I talked to him last week in his chambers at the Supreme Court.

Justice John Paul Stevens, thank you for talking with us.

FMR. JUSTICE JOHN PAUL STEVENS, U.S. Supreme Court: Well, I’m happy to be here.

JUDY WOODRUFF: You’re asking to amend the Constitution six different ways. How practical is that?

FMR. JUSTICE JOHN PAUL STEVENS: Well, it certainly would take time to do that job completely, but there’s no reason why — one or two amount amendments might be adopted before the others.

And I think the issues in each of the ones I discussed are sufficiently important that it’s worth spending time debating them and thinking about it.

JUDY WOODRUFF: You single out rules, Justice Stevens, that were handed down, as you point out, by a slim majority of the court over the last 40 years that you say — and I’m quoting you now — “have had such a profound and unfortunate impact on our basic law, that resort to the process of amendment is warranted.”

You’re essentially taking on the modern Supreme Court.

FMR. JUSTICE JOHN PAUL STEVENS: Well, because I have been trying to do that for a good many years.

But I think there were incorrect — incorrect decisions that were profoundly unwise, and really contrary to a lot of things that our country stands for. And I think they should be changed.

JUDY WOODRUFF: You’re speaking in a mild mannered way, Justice Stevens, but I can tell you feel pretty strongly about this.



FMR. JUSTICE JOHN PAUL STEVENS: There’s no doubt about that.

JUDY WOODRUFF: Let’s talk about some of the ways that you would like to see the Constitution changed.

Among other things, you want an amendment that would require the states not to draw legislative or congressional districts in a way to increase partisan strength. We know, clearly, there is partisan redistricting. But most redistricting is done around where populations live, whether it’s an urban area, a suburban area. Why isn’t this something that is better left to the political process?

FMR. JUSTICE JOHN PAUL STEVENS: Well, because the political process has misfired.

And in a number of states, the dominant party has redistricted with its own objective of strengthening its control of the state in the future and of its congressional delegation at the time by drawing bizarre districts that have no purpose whatsoever, other than to enhance the political strength of the party in power.

Now, it’s my very profound view that a person in public office has a primary duty to follow — to make impartial decisions, not motivated by personal profit or personal gain or advantage just to the political party of whom — of which he is a member.

JUDY WOODRUFF: So you’re saying take it out of politics?

FMR. JUSTICE JOHN PAUL STEVENS: Well, not entirely. But don’t allow districts to be drawn for no reason other than political advantage.

There are times when political — political considerations can be taken into account in making certain minor adjustments such as that.

But the examples that I talked about in the book are examples of districts that are bizarre in shape and have absolutely — obviously no justification, other than the impermissible justification of partisan advantage to those who drafted the districts.

JUDY WOODRUFF: You also want to amend the Constitution to abolish the death penalty. People who have always opposed the death penalty lament how long they say it took you to change your mind, from the time you came on the court in 1975 until 2008.

Why do you think it took you as long as it did to change your mind? And was it for humane reasons or constitutional reasons?

FMR. JUSTICE JOHN PAUL STEVENS: Well, I think that what has happened in the period that I have been on the court is that the court has used death penalty litigation to develop rules that make conviction more likely than it should be, the rules governing the selection of the jury, for example, rules governing the admissibility of victim-impact evidence at the penalty phase of the trial.

Those rules have slanted the opportunity for justice in favor of the prosecutor. And I think it’s particularly incorrect to do it in the capital context, because the cost is so high. If you make a mistake in a capital case, there is no way to take care of it later on.

And the risk of an incorrect execution in any case to me is really intolerable. And the system shouldn’t permit that possibility to exist.

JUDY WOODRUFF: Another controversy you’re jumping right into is campaign finance. You believe Congress should be able to put limits on the amount of money candidates spend on their campaigns…


JUDY WOODRUFF: … and that the Supreme Court has made mistakes in several decisions, allowing corporations, labor unions to advocate and spend money on candidates.

Considering all the court has done, Justice Stevens, to open the door for huge money to pour into American politics, including the recent McCutcheon decision, what effect does all this have on American politics?

FMR. JUSTICE JOHN PAUL STEVENS: Well, I don’t think it’s a healthy effect.

And I think it’s a change from what the people who direct — framed our basic government envisioned. For the — as the chief justice said, I think, in the first sentence of his opinion in the McCutcheon case the other day, there is nothing more important than participation in electing our representatives.

But the law that developed in that case and in a number of other cases involved not electing the representatives of the people who voted for them, but electing representatives of — in other jurisdictions where the financing is used. In other words, that was a case that involved the right of the — of an individual to spend as much of its money as he wanted to elect representatives of other people. He didn’t use any of that money to elect his own representatives.

And I think that’s a distortion of the concept that we started with many, many years ago.

JUDY WOODRUFF: The last area that I want to ask you about is what this country should do about guns. You would change the wording of the Second Amendment to the Constitution to say the right of people to bear arms to own a gun should apply only when serving in the militia.

Is it your ultimate hope that there would be no right to own a gun for self-defense?

FMR. JUSTICE JOHN PAUL STEVENS: Well, it would be my ultimate hope that legislatures would decide the issues, and not be hampered by constitutional restrictions, because, clearly, legislators are in a much better position than judges are to decide what could be permissible in different contexts.

And the effect of the Second Amendment as it is now construed is to make federal judges the final arbiters of gun policy, which is quite, quite wrong, I think, and quite contrary to what the framers intended when they drafted the Second Amendment, to protect states from the danger that a strong federal armed force would have been able to the states of their own militias.

JUDY WOODRUFF: When you look at all of these changes that you would like to see in the Constitution, and whether it’s campaign finance, redistricting or something else, do you believe the more conservative members of the Supreme Court have a partisan agenda? Do you think they are actually trying to get conservatives elected to office?

FMR. JUSTICE JOHN PAUL STEVENS: No, I don’t think so. I wouldn’t question their motives at all.

I think they have come to the incorrect conclusion, but I do think they have — where they have had chances to take a different tack, I think they have acted incorrectly. But I wouldn’t suggest that any of them were improperly motivated.

JUDY WOODRUFF: Do you think you should have stayed on the court longer?

FMR. JUSTICE JOHN PAUL STEVENS: Should I have stayed on — no.


FMR. JUSTICE JOHN PAUL STEVENS: If anything, I stayed on too long.

JUDY WOODRUFF: How does a justice know when it is the right time to retire? What do you think?

FMR. JUSTICE JOHN PAUL STEVENS: Well, in my case, the time — I can remember the events that triggered the specific decision.

I announced my dissent in the Citizens United orally, and I stumbled in my announcement. I had a little difficulty expressing myself. And that was out of character. And I used to have no problem at all being articulate and coherent.

And I took that as a warning sign that maybe I had been around longer than I should.

JUDY WOODRUFF: Justice John Paul Stevens, thank you very much for talking with us.

The book is “Six Amendments: How and Why We Should Change the Constitution.”

FMR. JUSTICE JOHN PAUL STEVENS: Thank you. It’s been a pleasure being here.