DAVID GREENE, Host:
It's rare that we get a look at the inner workings of the U.S. Supreme Court. But retired Justice John Paul Stevens, still active and busy at age 91, has made a few revelations in his new book, "Five Chiefs." Stevens dropped by our studios to chat with NPR legal affairs correspondent Nina Totenberg.
NINA TOTENBERG: John Paul Stevens, appointed to the Supreme Court by President Gerald Ford, served 35 years before stepping down last year. Retired he may be, but he remains busy, writing, speaking, and on the day I interviewed him, he'd played both tennis - singles - and contract bridge.
Before we turned to his book, I asked Stevens about recent controversies over Supreme Court ethics. The retired justice was always meticulous about recusing himself from any case in which he might even conceivably be seen to have a conflict. So what does he think about the wife of Justice Clarence Thomas engaging in overtly political advocacy?
JOHN PAUL STEVENS: I'm sure she's acting in good faith, doing what she thinks is in the public interest. And I don't think it has the slightest impact on Clarence's votes on the merits of cases. One might prefer to have her less active, but I really think that's a decision for them to make.
TOTENBERG: Stevens' book is framed as a discussion about the office of chief justice, including a brief history of the 17 chief justices who have served over the course of our history, and a more thorough discussion of the five chiefs he's known personally. But it's also a book about Stevens' own views.
Taking on the much-debated idea of original intent, the retired justice disputes the notion that anyone today can, with total clarity, know exactly what the framers intended. Nor, he argues, should that intent be the be-all and end-all of the legal analysis.
He points to the First Amendment freedom of religion guarantee as an example, noting that the leaders of the country in 1789 were all Christian, and their concern was to ensure that no particular brand of Christianity got government preference. Nobody had in mind any other religion.
PAUL STEVENS: It wasn't intended to protect the Muslims or the Jewish faiths or the atheists. The principle that was adopted is much broader. It's a principle that goes beyond the original intent.
TOTENBERG: Of the five chief justices Stevens knew, the three he actually served with were Warren Burger, William Rehnquist and John Roberts. Stevens is not a man with an edge, and he speaks fondly of all three, going to great lengths to describe Burger as a justice who is unappreciated for the good work he did.
But in the end, he concedes that Burger had some unfortunate flaws involving his non-public work as the presiding officer at the court's internal deliberations, known as the conference. Among them, his frequent failure to understand the positions being advocated by some of the justices, leading to screw-ups in the assignment of who would write an opinion.
PAUL STEVENS: He might make assignments to someone who didn't actually have five votes for the positions he'd expressed.
TOTENBERG: Another problem, Stevens says, is that Burger let the discussion ramble on forever. At the beginning of the court term, when the justices would sit down to consider the hundreds of appeals that had built up over the summer, the discussion lasted for nearly three days - all day Monday, Tuesday, and part of Wednesday. That changed when William Rehnquist became chief justice in 1986. And that same, so-called long conference was over on the first day - before lunch.
Chief Justice John Roberts also gets high marks from Stevens.
PAUL STEVENS: He's thoroughly prepared. He's very fair in his statement of the case, and he lets everyone have a say. I think there's a difference between him and Bill Rehnquist in that he allows more discussion after everyone's had a say-so on the case. He's a little less totally efficient.
TOTENBERG: Stevens blushes when he remembers his first days on the court, and his failure on one occasion to carry out the duty of the junior justice. Because only the justices attend the conference. If a message comes from the outside, or some papers are delivered that the justices called for, a messenger knocks on the door and the junior justice is supposed to answer. But at his second or third conference, Stevens was so absorbed in the discussion that he forgot.
PAUL STEVENS: It was very embarrassing.
(SOUNDBITE OF LAUGHTER)
PAUL STEVENS: Bill Rehnquist sat on my right, and Bill Brennan on my left. And both of them got up at the same time to answer. And I realized I had committed a terrible faux pas.
TOTENBERG: There is, of course, a phone in the conference room, too, that the justices can use to call out. But nobody ever calls in, according to Stevens. Indeed, if the phone rings it is, invariably, a wrong number.
PAUL STEVENS: Bryon White would answer and say, this is Joe's Bar.
TOTENBERG: Retired Supreme Court Justice John Paul Stevens. His book is called "Five Chiefs.
Nina Totenberg, NPR News, Washington.
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