Stevens: High Court's Supreme Dissenter?

Justice John Paul Stevens was nominated to the Supreme Court by President Gerald Ford. He views himself as a conservative, but at 87, Stevens is viewed as a liberal justice. Jeffrey Rosen, who wrote a profile of Stevens for The New York Times Magazine called "The Dissenter," talks with Robert Siegel.

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MELISSA BLOCK, host:

From NPR News, this is ALL THINGS CONSIDERED. I'm Melissa Block.

ROBERT SIEGEL, host:

And I'm Robert Siegel.

The Supreme Court gets back to work next week. It'll take up such matters as death by lethal injection and the requirement of photo ID for registered voters. There are nine justices on the court, and many important decisions recently have gone five to four. So arguably, every justice is extremely important and interesting.

Having said that, the legal writer and law professor, Jeffrey Rosen, had an article in the New York Times magazine this past Sunday about the senior justice on the court, John Paul Stevens, and he is extremely interesting. He was nominated by Gerald Ford, a Republican president. He's 87.

And, Jeffrey Rosen, based on his decisions, I would think of him as one of the liberal justices. You had a rare interview with him and he doesn't see himself that way.

Dr. JEFFREY ROSEN (Law, George Washington University; Legal Writer): He certainly doesn't. It's true that judged by his voting records, he's considered the most liberal justice. He's voted for the individual and against the government in criminal cases more frequently than any other justice on the court.

But I said to him, you don't see yourself as a liberal. And he just laughed and said, I don't think of myself as a liberal at all. He said, as part of my general politics, I think I'm pretty darn conservative.

Stevens insisted that his views haven't changed a bit since he was appointed to the court in 1975 by Gerald Ford as a moderate Republican and a judicial conservative. In his view, it's the court that's changed, not him. He said to me, it's striking that every justice appointed since Lewis Powell was appointed to the court by Nixon in 1971, has been more conservative than his or her predecessor, except maybe Justice Ginsburg. That's bound to have an effect on the court.

SIEGEL: One measure that was his view of the decision by the court against race-based assignment of students to public schools?

Dr. ROSEN: Well, that was a remarkable decision, because he was so passionate in dissent. He said, it is my firm conviction that no member of the court that I joined in 1975 would've agreed with today's decision. In his view, the liberals of the 1970s have just been lopped off the court, essentially. And the centrists, like himself, are now considered liberals merely because the court has shifted so far to the right.

SIEGEL: I want you to explain to the role that he enjoys, as the senior associate justice on the court in assigning opinions when, I guess, when the chief isn't part of that group.

Dr. ROSEN: It's a tremendously important power. When the chief justice is in the majority and Stevens is in the minority, he decides who writes the principal dissent. He chooses the liberal justice who speaks for all the other liberals.

By contrast, when the chief is in the minority, and Stevens is in the majority, he's a kind of shadow chief justice. He can either write the opinion himself or assign it to the justice he thinks will best reflect his views.

SIEGEL: Or assign it in a tactical way that would be most likely to keep the majority on board.

Dr. ROSEN: Well that's exactly right. And he talked about this very candidly. He said, frankly, if you have a particular justice who might be a little unsure in order to solidify his vote or her vote, you might assign it to him. And in recent years, it's been Justice Anthony Kennedy, the swing vote, who Stevens has been most eager to court and to keep on board. And he's made some extremely strategic and effective assignments.

Giving Kennedy, for example, the opinion of striking down sodomy laws in 2003, and more recently, Stevens himself wrote the majority opinion in the case arguing that the EPA had to regulate greenhouse gasses that may contribute to global warming. He persuaded Kennedy to join by repeatedly citing Kennedy's own decisions in his majority opinion.

So by wielding this power tactically and strategically, Stevens has really made himself the leader of the opposition on the court.

SIEGEL: But he belittles to you how much influence a senior justice can have on the thinking or the opinions of other justices?

Dr. ROSEN: He does. He said that the idea that you can win over another justice by charm or personal lobbying, which was a talent often attributed to Justice William Brennan is overrated. He said, I was fond of Bill Brennan, I love the guy, I had great admiration for him, but it's not right to say he was able to craft the majority. He simply has five votes on his side.

And in that sense, Stevens stressed that for him, persuasion is more intellectual than backstabbing. He appeals to Kennedy by making arguments that he thinks Kennedy will find persuasive. But in the end, it really is all about five votes that are on there.

SIEGEL: The stunning thing I found in his background, as you described it, was that John Paul Stevens was born to a very wealthy family in Chicago, then lost its money in the Depression. And his father - and I believe that you write his uncle, as well, his father was convicted of some kind of embezzlement or fraud and then vindicated on appeal.

Dr. ROSEN: It's a remarkable story. His father built the Stevens Hotel, which is now the Chicago Hilton. It was considered the grandest hotel in the world. Young Stevens and his brother actually posed as models for the bronze sculptures by the grand stairway. Unfortunately, once the Depression came along, things took a downturn and Stevens, his father and his uncle and his grandfather were all indicted for diverting funds from the life insurance company that the grandfather had founded to pay for bonds for the hotel. He was indeed convicted, as you say, but an appellate court overturned the conviction, finding that there was no evidence of fraud attempted of any kind.

And I asked Stevens, did this affect your worldview? And he said, I'm sure it did, you can't go through an experience like that and not be deeply affected. And Stevens seems to have taken from this. The lesson that the criminal justice system can seriously misfire - it certainly did in that case, he said - and as a result, he sided with the individual and against the government in more criminal cases than any other justice.

SIEGEL: As unusual as anything else about Justice Stevens, are his work habits which you described in this article. He flies from Washington - used to fly himself as a pilot, I gather - but he goes down to Fort Lauderdale and spends half the year there from what you write.

Dr. ROSEN: Stevens is the first telecommuting justice and he's really an inspiration to us all. He spends two weeks a month while the court is in session in Fort Lauderdale, he's anonymous down there, his neighbors think he's stuffy because he reads briefs by the pool and sometimes shakes sand out of the briefs when he's at the beach, and he originally was known as the FedEx Justice, because he would send his drafts back and forth. Now, he uses a computer, he just says, it's marvelous, you press a button and zing, it's there, and he's proved that it's possible to be an incredibly productive Supreme Court justice while spending most of your time at the beach.

SIEGEL: One last point. He referred to you at one point to an opinion that he wrote as an appellate justice in a case about counting votes in a disputed election.

Dr. ROSEN: It was really charming. It was almost the end of our interview and he was almost shy. He said, well, you might possibly want to look up this little opinion I wrote in 1970. It involved an Indiana election in which my colleagues stopped a recount because they wanted to preserve the ballots. And he dissented, saying that the state judges should be trusted, not to have their integrity second-guessed by the federal courts and, basically, the recount should proceed.

So I naturally asked, Mr. Justice, why did - why is this opinion so important to you? And his eyes flashed and he said, because I had it very much in mind when I wrote Bush against Gore.

SIEGEL: Which was, indeed, the dissent, not the majority, it's from (unintelligible)…

Dr. ROSEN: It sure was. It was.

SIEGEL: Jeffrey Rosen, thank you very much.

Dr. ROSEN: A pleasure to be here.

SIEGEL: Jeffrey Rosen wrote the article of "The Dissenter: Majority of One Stevens at the Supreme Court" for the September 23rd issue of The New York Times Magazine.

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