Retired Justice John Paul Stevens is a man of few regrets from his nearly 35 years on the Supreme Court, except one – his 1976 vote to reinstate the death penalty.
“I really think that I’ve thought over a lot of cases I’ve written over the years. And I really wouldn’t want to do any one of them over…With one exception,” he told me.
“My vote in the Texas death case. And I think I do mention that in that case, I think that I came out wrong on that,” Stevens said.
At the time he thought the death penalty would be confined “to a very narrow set of cases,” he said. But instead it was expanded and gave the prosecutor an advantage in capital cases, according to Stevens.
The retired associate justice has been an outspoken opponent of the death penalty, but his admission of that 1976 Jurek v. Texas vote comes at a time when the country appears to be revisiting its stance on the death penalty, in light of Troy Davis’ execution last week.
He writes in his book, “Five Chiefs,” that he regretted the vote “because experience has shown that the Texas statute has played an important role in authorizing so many deaths sentences in that state.”
In a recent Republican presidential debate there was a burst of applause after the moderator mentioned the 234 executions that occurred under Gov. Rick Perry. Stevens said he was “disappointed” when he saw that reaction.
“Maybe one believes, and certainly a lot of people sincerely do, that it is an effective deterrent to crime and will in the long run will do more harm than good. I don’t happen to share that view,” he said. “But there are obvious people who do. And, of course, being hard on crime has been– always– is politically popular, let’s put it that way.”
President Ford appointed Stevens in 1975. A year after his retirement Stevens is out with a memoir, “Five Chiefs,” about his time arguing in front of and then working with five different Chief Justices.
Despite his retirement status Stevens did not want to weigh-in on whether to uphold President Obama’s health care legislation – an issue that as of today 26 states and the Obama Administration have asked the Supreme Court to decide.
But Stevens did give a piece of advice to his former colleagues, just do it.
“I just think that you– you should put all [political consequences] to one side. If you’ve got a case to decide, just decide it on the merits,” he said.
“If a case is there, the judge, the court has a duty to decide it. I think they just have to decide it and not think about that particular consequence.”
Stevens did not give us a hint about which of his decisions was his favorite – but in his book he wrote about one case that “killed two birds with one missile.”
In 1996 Romer v. Evans came before the court – the Colorado law that banned discrimination against gays and lesbians. The chief justice was in dissent and Stevens assigned Justice Anthony Kennedy – who he called “Tony”- to write the majority opinion, setting the stage for future rulings.
“It also, as you said, overruled the earlier case that Byron White had written that basically held that sodomy could be punished criminally. And so I think that Tony did kill two birds in one– with one missile,” Stevens told me.
Stevens wouldn’t weigh in on whether the Supreme Court is moving towards approving gay marriage, but he noted the “dramatic change” in public opinion and acceptance.
“Now I think it’s a product of– of the– the country at large, realizing how many people who have same sex preferences are part of the community,” he said.
Although he’s retired Stevens still keeps an office at the Supreme Court. Elena Kagan replaced him on the bench, and Stevens said he couldn’t be happier.
“How is she doing? Well…wonderfully. I guess I say that not only because I agree with almost every– every vote she’s made since she’s-taken on the court,” he said. “But she writes beautifully. And she has written some very fine opinions.”
Stevens told me her nomination made it easier for him to retire.
CLICK HERE to read the full transcript of my interview.