Justice Stevens: Life On The High Court

ROBERT SIEGEL, host:

From NPR News, this is ALL THINGS CONSIDERED. I'm Robert Siegel.

MARY LOUISE KELLY, host:

And I'm Mary Louise Kelly.

The Supreme Court opened its new term today with a new face. Justice Elena Kagan sat in the junior justice's seat at the far end of the bench. For the first time, a third of the nine-member court is female, and all of its justices are either Catholic or Jewish - no protestants. Also, for the first time in nearly 35 years, Justice John Paul Stevens was not there. The 90-year-old justice retired in June.

During the summer break, he spoke with NPR legal affairs correspondent Nina Totenberg about his many years on the court.

NINA TOTENBERG: Even now, there is nothing about John Paul Stevens that suggests he's 90 years old. He still plays singles tennis every week, swims, plays golf and contract bridge and has a competitive streak belied by his gentle demeanor.

One of his colleagues recalls encountering Stevens early one morning in the Supreme Court garage. Stevens was still in his tennis clothes. And when the other justice asked how the game went, Stevens jumped up and down like a kid, declaring, I creamed him.

That is not the kind of behavior usually seen from the Midwesterner often called a judge's judge. Colleagues, clerks and counsel, all describe him as a man of unaffected decency who is unfailingly polite and gracious. So skilled is he at building relationships on the court that other justices have said they would like to bottle his talent.

When we talked in his chambers, he chuckled about the notion that he is some sort of great tactician.

Mr. JOHN PAUL STEVENS (Former Justice, U.S. Supreme Court): There's no grand strategy or anything like that. It's just part of the way I think judges should work together on a multi-judge court. I think back, frankly, one of the things that makes this a nice place to work is the custom of shaking hands before you go on the bench. It's a funny thing that that very minor ceremony starts everybody off in a collegial manner, and it - that stays right there.

TOTENBERG: Unlike many court commentators, Stevens does not attribute political motives to colleagues he disagrees with. That doesn't mean that Stevens and his antagonists on the court have disdained strong language. In January, when a new conservative majority struck down a 100-year-old ban on corporate spending in candidate elections, Stevens, in dissent, wrote that the court's decision would cripple the ability of ordinary citizens, Congress and the states to adopt even limited measures to protect against corporate domination of the electoral process.

Conversely, in 2008, when the court, including Stevens, declared that detainees at Guantanamo have a constitutional right to court review of their detentions, Justice Antonin Scalia, in dissent, said the majority opinion will almost certainly cause more Americans to be killed.

When I mentioned Scalia's words to Stevens, he responded with a tiny twinkle.

Mr. STEVENS: He's writing that about his judgment about the consequences of our opinion, which I think, probably, has turned out to be an incorrect prediction, by the way. He has made - written a number of opinions in which he has made very seriously dire predictions about what would happen. And I think, by and large, those things did not happen.

TOTENBERG: Stevens and Scalia have gone at each other on many subjects, but their core disagreement is over Scalia's espousal of originalism - the idea that the Founding Fathers intended the Constitution to mean only what it meant at the time of enactment, no more and no less. Or as Scalia puts it, the Constitution that I interpret and apply is not living but dead. Stevens disagrees.

Mr. STEVENS: To suggest that the law is static is quite wrong. I mean, after all, the whole purpose was to form a more perfect union, not something that's perfect when we started. We designed a system of government that would contemplate a change and progress.

TOTENBERG: This clash of views is exemplified in an opinion Stevens wrote in 1990 invalidating the Illinois patronage system as a violation of employees' First Amendment rights to freedom of association. Stevens notes that when he first encountered the question, he thought the claim had no merit. After all, as Justice Scalia would subsequently observe, patronage existed at the time the republic was founded. But Stevens, upon examining the question, reached a conclusion exactly opposite of what he originally thought.

Mr. STEVENS: It did persuade me that some things that have been part of our law for a long, long time are not necessarily correct interpretation of the Constitution. The best example of that, of course, is racial discrimination, matters of that kind. But the patronage system, it seemed to me, was a misuse of governmental power. The government has a duty to act impartially.

TOTENBERG: And if the government advances one party's interest instead of society's as a whole, it is violating a core concept in the Constitution.

Mr. STEVENS: So that was part of my education on the job.

TOTENBERG: Almost all of Stevens' changes of heart occurred before, not after making a decision. But there is one exception.

Mr. STEVENS: I think there is one vote that I would change, and that one was upholding the Texas capital punishment statute.

TOTENBERG: In 1976, when Stevens was first on the court, he voted to uphold the death penalty. At the time, he says, the court believed it was upholding statutes that allowed the death penalty for a narrow category of offenders, using procedures that, as Stevens puts it, prevented loading the dice towards the prosecution.

But as the court's composition grew more conservative, he says, the universe of those eligible for the death penalty grew, and the court permitted more prosecution-friendly procedures in capital cases.

Mr. STEVENS: We did not foresee how it would be interpreted. I think that was an incorrect decision.

TOTENBERG: I asked Justice Stevens if his concern for the rights of criminal defendants might stem from his own family's experience. His father, who built and ran what was then the largest hotel in Chicago, was prosecuted for embezzlement and convicted. Facing 10 years in prison, he was subsequently exonerated by the Illinois Supreme Court, which unanimously reversed the conviction, declaring that the alleged crime was a mistaken investment and that there was, quote, "not one scintilla of evidence of concealment or fraud."

So did that experience affect the justice's own attitudes about the law?

Mr. STEVENS: It's a funny thing. I thought about that, but I don't really think it had any impact whatsoever on me, to tell you the truth. The reason I say that is that at the time, I never really considered it a being a realistic possibility that he would ever go to jail, because I knew the kind of man that he was. He simply was not capable of either a dishonest or a dishonorable act.

TOTENBERG: Indeed, Stevens says, after the decision, he still planned a career teaching English and only changed his mind years later. Once on the Supreme Court, Stevens found he changed his mind quite often.

Mr. STEVENS: It's just part of the job where you take the cases one at a time. And I have found very often, I'm surprised that the result I come out with is not necessarily what I assumed in advance.

TOTENBERG: He still has not made up his mind about one Supreme Court issue -whether the court should allow TV cameras to record and broadcast the arguments.

Mr. STEVENS: I think it's a very close question as to whether it's desirable because on the plus side, I think you develop more respect for the court when you see it how it actually handles oral arguments and you see that the justices are prepared and have thought about the problems and so forth. But the other side is that whenever you introduce television into an area where you haven't had it before, it has an adverse impact on the process. Confirmation hearings are an example. And I think there is a very serious risk that if you introduce television into the Supreme Court arguments, it may have an unintended consequence that we really don't foresee right now.

TOTENBERG: So is Stevens sad to have left the court?

Mr. STEVENS: Yes, I am. I'm both happy and sad. I know I'll miss the work. I really, really love the job. But I'm also looking forward to having not so many deadlines to meet.

TOTENBERG: Retired Justice John Paul Stevens, today, for the first time in 35 years, the court began work without him.

Nina Totenberg, NPR News, Washington.

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