Transcript: My Interview With Retired Justice John Paul Stevens

Sep 29, 2011 8:02am

I sat down with retired Supreme Court Justice John Paul Stevens Wednesday in Washington, D.C.  Stevens is out with a “Five Chiefs,” a memoir that chronicles his six decades on the court and his relationships with five different chief justices during that time.  Here is the full transcript of the interview.

GEORGE STEPHANOPOULOS: Justice Stevens, thanks for doing this.

JOHN PAUL STEVENS: Well, I’m happy to happy to meet you.

GEORGE STEPHANOPOULOS: So “Five Chiefs,” this is chief justices you’ve known, had some contact with–

JOHN PAUL STEVENS: Correct.

GEORGE STEPHANOPOULOS: — over the course of your legal career.  What did you– what did you learn by going back and looking again at their careers?

JOHN PAUL STEVENS: Well, it’s an interesting question.  I learned– I learned a great deal. I’m not sure I can summarize it all, at the time.  But I learned about some of the cases they’d written and some of the things that they’d done in their job.  And I– that’s a question I should be prepared to answer.  I can say I learned a great deal.

GEORGE STEPHANOPOULOS: And but when you– when you look at their careers and all of the chief justices, which qualities do you end up prizing most?  Or think is most important in a chief?

JOHN PAUL STEVENS: Well, the most important quality in a chief is really the same quality in any other justice, which is the most important work they do is working on deciding cases, in which in that part of the work, they’re equal with the other members of the court.  And, of course, they often will write the opinions in the more important cases, the ones that get the most attention.  But their work is essentially the same as the other justices.

GEORGE STEPHANOPOULOS: I was struck by something you wrote in the book.  You said that service on the court– I’m paraphrasing here.  But service on the court can have a civilizing effect on a justice.

JOHN PAUL STEVENS: Well, I suppose in the sense that you have to learn to get along with and to discuss in the– in a friendly way very serious issues and about which are very serious disagreements of opinion within the members of the court.

GEORGE STEPHANOPOULOS: So it forces civility?

JOHN PAUL STEVENS: Yes, yeah.  It’s a place I often think about. Of course, one of my favorite people was President Ford.  And, you know, he often said “The country’s a country where you can disagree without being disagreeable.”  Well, that’s true of the work within this smaller organization, too.

GEORGE STEPHANOPOULOS: That’s one of the other things you write about in the book.  You mention President Ford, who, of course, appointed you to the court.  And suggested he really didn’t get the credit he deserved for healing the nation, post Watergate.

JOHN PAUL STEVENS: Well, I think that’s right.  And I often think that if they had the election that– the one where he didn’t win.  If they had that today, I think maybe he’d win.  Because I think the country generally has realized how important his work was at bringing peace and civility back to the country.

GEORGE STEPHANOPOULOS: You of course, became an outspoken opponent of the death penalty in your time on the court.  How did you evolve?  Can you summarize how your own views evolved?

JOHN PAUL STEVENS: About the death penalty?  Well, of course, it’s a long story, because I’ve been involved in that issue for so long.  But there also you have to keep in mind, there are always two part to the question.  One is, “When do you think it’s constitutional to have the death penalty?”  And the other question is whether one thinks it’s a wise thing to do.  And on the second question, whether your opponent is a matter of policy I’ve never felt that it was a particularly wise method of punishment.  And several of the members of the court, I can say specifically Warren Burger and Harry Blackmun, although they voted to uphold the penalty consistently early on, they personally did not think it made sense.

But my own thinking on the issue, on the constitutional issue evolved over the years, after our first decision in 1975, in the first year that I came in the court, in which at which time I thought the court was adopting procedures and rules that would confine the imposition of the death penalty into a very narrow set of cases.  And they took special pains to have fair procedures.

And over the years, the– I was disappointed to find they expanded the category of cases, rather dramatically later on, in ways that I don’t think Potter Stewart would have agreed with– who was sort of the principle author of our join opinion on– and they also have relaxed procedures in ways that actually give the prosecutor advantages in capital cases that I don’t think he has in ordinary criminal cases.  And so that seemed to me there’s a change in the general atmosphere around capital cases that occurred over the years and made me–

GEORGE STEPHANOPOULOS: It seems like there may be another evolution now in the country that the case of Troy Davis, executed last week.  It appeared with the protests around that that the country may be heading towards a tipping point in another direction, against the death penalty.  Is that what you see?

JOHN PAUL STEVENS: I don’t know.  I’m not a very good judge of public reaction on something like that.  But I think there always has been a significant group that felt that the penalty really wasn’t worth it and caused more harm than good.

GEORGE STEPHANOPOULOS: When you look at all the justices you write about in this book, and you’re very careful and judicious in your judgments.  Which one do you think had the most impact on the country?

JOHN PAUL STEVENS: Oh, I think probably well, it’s between I think Justice Warren must have had the greatest impact, because Brown against the Board of Education was such an important case.  And the cases involving one person, one vote were terribly important.  Miranda was terribly important.

And I think that they’re rivaled by the opinion in the Nixon tapes case that Warren Burger is credited with having written, although there were others participated in the process.  That was a terribly important case, too.  Because although it’s not discussed all that often, I think it really played a very important role in establishing the public confidence in the court as an institution, and making it clear that public conscience is what gives the court its strength.

GEORGE STEPHANOPOULOS: Yeah, and you write in the book that it may have done more than any other case in American history to inspire that kind of confidence.  And I was thinking about that, as I also read your words about Bush v. Gore.  Those two cases, in your writing, and this is me interpreting a bit, seem like book ends.  You have two cases involving the presidency and the court. One which inspires confidence, and one, in your writing, in your now quite famous dissent, did a lot to take away confidence in our institution.

JOHN PAUL STEVENS: Apparently, it– I’m sure it did adversely effect the confidence, but apparently, the public still holds the court in high regard and trusts it as– a strong legal institution.

GEORGE STEPHANOPOULOS: Did you believe that confidence would remain?  You were worried?

JOHN PAUL STEVENS: Well, I was worried about it, yes.  And I think you know you can’t judge an institution on the basis of one or two cases with a long history there.  And it’s just a part of the whole history that I think was a misstep.

GEORGE STEPHANOPOULOS: It was interesting to me.  The words in your dissent were so much more forceful than what you write in the book.  In the book, you conclude that this frivolous day cost the court a few days work.  And I was surprised — have your views moderated over time?  Or is it just a controversy you don’t want to revisit?

JOHN PAUL STEVENS: No, no, no, it’s– I think that what I say about that case is very similar to what I might say about the Second Amendment case or the political contributions cases– Citizens United and the (UNINTEL) case.  I just didn’t want to be rewriting my dissents in the book.  And I made a conscious effort, if people want to take the time to read some of those very long and you might so overwritten dissents, that’s a different, a different arena.

GEORGE STEPHANOPOULOS: It seemed like you know, you talk about Citizens United, you talk about Bush v. Gore, that your own writing, particularly in dissent, got more free, more forceful over the course of your time and your court.  Do you think that’s correct?

JOHN PAUL STEVENS: I’m– I’m not–

GEORGE STEPHANOPOULOS: Well, your writing– your dissents and your writings, your opinions in your time on the court, over time, when you look at cases like Bush v. Gore, like Citizens United, it seemed like your– your pen got mightier–

JOHN PAUL STEVENS: Well, it’s– it’s been–

GEORGE STEPHANOPOULOS: –over the course of your tenure.

JOHN PAUL STEVENS: –received, perhaps, more– more favorably.  But I feel equally strongly about some of the cases I– the Printz case years ago, when they held that the federal government could not use state and law enforcement officers to temporary gun checks during the period when the– when the Brady Act was coming into enforcement.  Some of those cases were equally incorrect, (CHUCKLE) in my view.  And I think if you  at the time and the inclination you’d find some pretty strong language, in some of those dissents, as well.

GEORGE STEPHANOPOULOS: Which case are you most proud of in your career?

JOHN PAUL STEVENS: You know, I’ve been asked that question a lot and I should be ready for– with an answer.  I’m– there– there are a lot of them, to tell you the truth.  And 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.

GEORGE STEPHANOPOULOS: Not one?

JOHN PAUL STEVENS: With one exception.

GEORGE STEPHANOPOULOS: Which is?

JOHN PAUL STEVENS: 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.

GEORGE STEPHANOPOULOS: And one of the things we’ve seen in Texas is a proliferation–

JOHN PAUL STEVENS: Right.

(OVERTALK)

GEORGE STEPHANOPOULOS: –of executions.

JOHN PAUL STEVENS: And I think that my law clerk at the time sort of foresaw that that was a problem that was inherent in the way that statute was drafted.

GEORGE STEPHANOPOULOS: I don’t know if you saw it, but there was actually a moment in the last couple of weeks, in one of the presidential debates, where the number of executions in Texas was cited, and the crowd cheered.

JOHN PAUL STEVENS: I noticed that, yeah.

GEORGE STEPHANOPOULOS: What did you think?

JOHN PAUL STEVENS: I was– I was rather disappointed, because it– 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.  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.

GEORGE STEPHANOPOULOS: Yeah, I know you don’t want to single out any one of your own opinions as your favorite.  But in your book, you talk about your duties as the senior justice when the chief is not in the majority, you had the ability to assign the opinion to another justice.  And you talk about the Romer case in Colorado, back in 1996, which you assigned to Justice Kennedy.  And, of course, that famously overturned a Colorado law, which banned laws prohibiting discrimination against gays and lesbians.  You said it killed two birds with one missile.

JOHN PAUL STEVENS: Well, it took care of that particular statute.  And 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.

GEORGE STEPHANOPOULOS: And, of course, that can be back– those opinions, that opinion is going to be, some of the people are going to be looking at in the years ahead, because of the whole issue of gay marriage.

JOHN PAUL STEVENS: Right.

GEORGE STEPHANOPOULOS: Do you think the court is moving towards approving that?

JOHN PAUL STEVENS: Well I don’t really know about that, but certainly the country is, which is– there’s been a dramatic change in public understanding and public acceptance of people that, back when I was in, were just not very well known and very well identified.  And now I think it’s a product of– of the– the country at large, realizing how many people who have same same sex preferences are part of the community.

GEORGE STEPHANOPOULOS: How much impact– if you were still sitting on the court, how much impact would that evolution of public opinion have on your decision?

JOHN PAUL STEVENS: That’s a good question.  And I don’t know.  I’d have to think it through very carefully.  Because it is true that– that one thinks about what the society in general has to consider about a problem.

GEORGE STEPHANOPOULOS: Do you believe that this is something that you would find constitutional?

JOHN PAUL STEVENS: Well, I don’t think– it’s– and I don’t mean to be ducking.  But it reminds me a little bit of my experience when I was going through the confirmation process.  And somebody might ask me what I feel about the death penalty.  And I wanted to keep an open mind until I read the briefs and heard the arguments and so forth.

And that’s same on this — on this issue.  I would think one would have to read what the arguments pro and con.  And there’s some very fine lawyers, who are– who are– on both sides of this issue.  And I haven’t–

GEORGE STEPHANOPOULOS: It was interesting just a few minutes ago to see Justice Kagan– and then, of course she replaced you on the bench.  How do you think she’s doing?

JOHN PAUL STEVENS: How is she doing?  Well, I– 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.  But she writes beautifully.  And she has written some very fine opinions.  And she’s extremely articulate person and very thoughtful person.  And I’m very– it made my resignation much easier to be replaced by someone like that.

GEORGE STEPHANOPOULOS: And one of the things you write about is that the court changes not only with each chief, but with each new member–

JOHN PAUL STEVENS: Oh, yes, definitely.

GEORGE STEPHANOPOULOS: –on the court.  How do you think she’s changed the court?

JOHN PAUL STEVENS: Well, it may be that the change in the immediate future won’t be all that dramatic, because I think it’s been improved.  (LAUGH) I should say that, because she’s so extremely well-qualified.  But every justice does change the chemistry within the court.  There’s no doubt about it.  Every new justice does.

GEORGE STEPHANOPOULOS: And when you write about Justice Roberts, I’m struck, you obviously believe he’s a man of great talent.

JOHN PAUL STEVENS: Absolutely.

GEORGE STEPHANOPOULOS: One of the greatest oral advocates ever to appear before the court.  Yet you write that you would not give him a passing grade in the First Amendment.

JOHN PAUL STEVENS: Well, on a couple of cases.  I thought– I thought the case involving the intentional infliction of emotional harm on a veteran at a funeral service.  I thought the court got it wrong on that.  And that’s– so that’s– that turned out to be a First Amendment.  I wouldn’t give him a passing grade on that case.  And I think there’s one other to which I look– that I referred to that I thought he might have gotten–

(OVERTALK)

GEORGE STEPHANOPOULOS: Well, Citizens United–

JOHN PAUL STEVENS: Citizens United, right.  That -

GEORGE STEPHANOPOULOS: You write in the book on Citizens United, which, of course, has opened the door to unlimited contributions in–

JOHN PAUL STEVENS: That’s right.

GEORGE STEPHANOPOULOS: –federal campaigns.  That you give your quote– yourself credit for prescience there.  You’re seeing what you feared.

JOHN PAUL STEVENS: Well, that’s true.  But actually I recently gave a talk about Byron White, and he’s the one that was really foresaw what would come out in his separate writing in the Buckley case back– the year I joined the court.

GEORGE STEPHANOPOULOS: What do you think is the danger?

JOHN PAUL STEVENS: What do I think–

GEORGE STEPHANOPOULOS: What do you think is the greatest danger there?

JOHN PAUL STEVENS: Well, I think it distorts– the danger’s it will distort the process.  It always seemed to me that rules that tend to give participants in a debate equal opportunity to convince whoever’s going to make the decision, basically should be fair rules.  And I think that giving a huge advantage to making the outcome of an election appear to depend on who can raise the most money, just doesn’t seem to me the right way to be debating about who can best lead the country.

GEORGE STEPHANOPOULOS: It doesn’t appear that’s going to turn around any time soon.

JOHN PAUL STEVENS: Pardon me?

GEORGE STEPHANOPOULOS: That doesn’t appear that’s going to turn around–

JOHN PAUL STEVENS: No, it surely doesn’t.

GEORGE STEPHANOPOULOS: –any time soon.

JOHN PAUL STEVENS: It’s going the other way.

GEORGE STEPHANOPOULOS: You know, we also learned yesterday the Obama Administration chose not to seek a full appeals court review of  the health care case, whether President Obama’s health care law is constitutional.  And again, I know you’re not going to prejudge the issue without seeing the briefs.  But try to give us some insight into how a justice would think about that case coming before the court in an election year?

JOHN PAUL STEVENS: Well, it– it– that’s– that’s– I think the justice that I remember most clearly, who would give a lot of thought to that would be Justice Frankfurter.  He used to think about the political consequences of cases and what’s going on.  And I think he was very cautious in Brown against the Board of Education.  Because he thought about its impact on the country.  But I just think that you– you should put all that to one side.  If you’ve got a case to decide, just decide it on–

GEORGE STEPHANOPOULOS: Just do it.

JOHN PAUL STEVENS: –the merits.  He just– that’s right.  And I think that’s part of the job of a judge.  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.

GEORGE STEPHANOPOULOS: You were famously a justice appointed by a Republican president, who didn’t seem to vote a party line on the court.  That appears to be getting more rare.

JOHN PAUL STEVENS: Well, there’s an– there is that appearance, but I — but I think you sort of have to wait and see.  Because you never really know how a judge will size up a particular case.  One might not have expected, for example, Justice Scalia to take the position he has in cases involving the confrontation clause.  And sometimes I joke he’s the best friend of the criminal defense bar.  But that’s certainly not a bar that he’s particularly interested in serving.  But– but– a judge really does look at– look at cases differently than a person in the political world does.

GEORGE STEPHANOPOULOS: Do you think your views were changed and molded by your fellow justices?  In a real way?

JOHN PAUL STEVENS: Well, I wouldn’t say they were molded.  But I think there’s no doubt about the fact that in individual cases, you carefully listen to everyone else.  And then– and from time to time, you can be influenced by someone you might not expect to be influenced by, because you can get awfully good arguments from people that you often do not agree with.

It’s funny you mention that and it reminds me of Potter Stewart saying when– when people were asked that same kind of question.  You can’t afford to be an enemy of any one member of the court, because the next case you may need them as your best friend.  And the– and the– there is a change in the day to day decision process.  I mean, in different cases, yeah.

GEORGE STEPHANOPOULOS: And one thing the does seem to be striking about– and this is– you know– I’ve spoken to many justices on the court.  And whatever their political views, they all can say that it doesn’t affect the personal relationships.  And–

JOHN PAUL STEVENS: That’s true.

GEORGE STEPHANOPOULOS: –that’s quite different from other political institutions.

JOHN PAUL STEVENS: It is.  And, of course, it has- that has not always been true.  There’s a very interesting book called The Scorpions.  I think it is– you might be interesting in reading.  About the differences within the court right after Jackson failed to become the chief justice.  The rivalry between him and others– other members of the– when Vinson became the chief.  And I think during that period, there was some personal difficulty– among the justices.  I didn’t see it myself as a law clerk, but I sort of sensed it.

GEORGE STEPHANOPOULOS: And– but not as– not when you were serving as a justice?

JOHN PAUL STEVENS: No, never.  And it’s true, in– I– I was skeptical, before I came on the court about the– when I thought I was the– it was the party line.  They were all good friends.  But I found that to be really true.

GEORGE STEPHANOPOULOS: Can you imagine a Republican president today appointing a 54-year-old Justice Stevens to the court?

JOHN PAUL STEVENS: Well, depends on the– yes, I still can.  I still can imagine that.

GEORGE STEPHANOPOULOS: You told A.A.R.P. last year, I believe it was, that you might have regretted retiring.  You think you retired too soon?

JOHN PAUL STEVENS: No, definitely not.  I think I– I think I hit the nail right on the head.  I clearly was eligible and it was– it was time to do it.

GEORGE STEPHANOPOULOS: Do you miss it?

JOHN PAUL STEVENS: I miss it, but not all plusses– not all plusses.  I mean, the– I missed favorably not having to get– read all those petitions and read all the briefs to get ready for next week.  But I do enjoy that I can read them at, read the opinions, at my leisure, when I feel like reading it, rather than under the time pressure.  And– and– and– but I still I’m interested in the work of the court and follow it.  But without the same pressure.

GEORGE STEPHANOPOULOS: And I would imagine there must be cases that you just wish you could have an impact on.

JOHN PAUL STEVENS: I’m sorry?

GEORGE STEPHANOPOULOS: I imagine there must be cases where you just wish though, “Boy, I’d like to be in there.”

JOHN PAUL STEVENS: Well, that– that didn’t happen last year.

GEORGE STEPHANOPOULOS: No?

JOHN PAUL STEVENS: No.  I mean, I admired what was done on one side or the other.  And felt very strongly that certain mistakes were made.  But I also felt that the — that the people, that the justices who shared my view expressed it effectively and cogently.  And so I’m not sure the court lost all that much when I wasn’t around.

GEORGE STEPHANOPOULOS: Well, I’m sure many would disagree, but there’s on another issue, there was quite a bit of controversy back in– President Obama’s– 2011, I believe it was.  2010, State of the Union, when he talked about the Citizens United case.  And, of course, the controversy over Justice Alito.  And whether Justices should even be at the State of the Union.  You seemed to have a divided opinion.  On the one hand, you believe it’s important for justices to appear–

JOHN PAUL STEVENS: Right.

GEORGE STEPHANOPOULOS: –before the president.  Yet, you chose not to appear– not– not to go to any swearings in, where presidents appeared, of fellow justices.

JOHN PAUL STEVENS: Well, after– after Justice Kennedy was sworn in, I went to all of them up to there.  And it seemed to me that– that– I think the State of the Union Address is different from having a swearing in of a justice in the White House.  It seemed to me that was inconsistent with a very basic separation of powers among the three branches of government.

But the State of the Union message is, after all, a national– it’s — it’s not– just an executive event or a legislative event or a judicial event, it’s a national event, which it is appropriate, it seems to me, to have all three branches represented.  But it is also a political event, to a certain extent, and that’s why this constant and standing up and cheering every– every time you–

GEORGE STEPHANOPOULOS: It must have been awkward as a justice.

JOHN PAUL STEVENS: It was awkward.  And I can remember one instance shortly– well, you probably know the history of the– that.  But back when President Johnson gave a state of the union message endorsing the Civil Rights Act, the justices all stood up and cheered and clapped.  And one of the newspapers, the next day, had an editorial saying, “Well, the court has apparently held the Civil Rights Act constitutional.”

And so they thought, “Well, maybe we shouldn’t be showing our agreement or disagreement with matters of policy.”  So ever since then, the justices have always been very silent.  Never– never– showing anything, with the one exception when– when President Reagan took credit for her– his nomination of– Sandra.  We stood up and clapped on that occasion.

GEORGE STEPHANOPOULOS: Understandably.

JOHN PAUL STEVENS: But it is awkward to be– to be there and not– you know, not a normal participant in the event.

GEORGE STEPHANOPOULOS: Finally, you know, you talked about how the confidence of the court has survived Bush v. Gore.  But it comes at a time when confidence in Congress, in the presidency, and most of our public institutions is as low as it’s ever been.  So given that, what do you think these other institutions and the rest of us can learn from the court?

JOHN PAUL STEVENS: Well, of course civility is one– one that even– even that, though, you have to wonder from time to time, because we get carried away in some of our opinions– are– are less civil than we should be.  But the– I– I don’t think we should be teaching the legislator how– how– legislator how to legislate or the executive how to administer the government, because we have an– we have our limited responsibility.  And I think we should– when we do our best work, when we concentrate on just our judicial responsibilities.

GEORGE STEPHANOPOULOS: Finally, you just made me think of one other thing.  You talk about sometimes you get a little intemperate in opinions.  I know you don’t regret, with one exception, any of your opinions.  Do you regret anything you ever wrote, though?  Did you ever have to apologize to another justice for it?

JOHN PAUL STEVENS: No– the– but there are occasions, and not very often, when one justice will call another thing, “I think maybe that’s a little– goes a little farther than you want to go.”  And I remember taking out, at request of a colleague, an adverb or two that were perhaps too strong.  And– but we– we all feel we have the right to talk to someone who disagrees with– with one. And we make a request of that kind.  And sometimes that’s done.

GEORGE STEPHANOPOULOS: Justice Stevens, thanks very much.

JOHN PAUL STEVENS: Thank you.

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