Justice Stevens Interview: An Open Mind On A Changed Supreme Court For the first time in 35 years, Justice John Paul Stevens is not on the Supreme Court bench as a new term opens. The 90-year-old justice, who retired this summer, talks to NPR about baseball, taking cases one at a time, and the one vote he would change.


Justice Stevens: An Open Mind On A Changed Court

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The Supreme Court opens a new term today and there are many firsts. This is the first time three women have been on the bench; it's the first time there's no war veteran, and the first time there is no Protestant. All of these developments are linked to the retirement of Justice John Paul Stevens, since he is a Protestant and a veteran who was replaced by a woman.

It's the first time the court has been without Stevens since the 1970s. Over the summer, he spoke with NPR legal affairs correspondent Nina Totenberg about his decades on the court.

NINA TOTENBERG: Justice Stevens welcomed us into his chambers this summer, wearing his trademark bow tie. It was a hot summer day, and he'd promised that once the term was over, he would sit for a tape-recorded interview.

To understand the arc of history Stevens has witnessed, you need only know that one of the artifacts in his office is a scorecard from the famous 1932 World Series game, when Yankees' slugger Babe Ruth, playing the Chicago Cubs in their home park, pointed to center field and then hit a home run there. The blast was a blow to a 12-year-old John Paul Stevens sitting in the stands with his father.

Nearly three-quarters of a century later, at age 85, Justice John Paul Stevens threw out the first pitch at a Cubs game.

JOHN PAUL STEVENS: I used to be able to throw a ball pretty well, but when I first picked up the ball to throw it, in anticipation of this, it got about half way to the plate. So, I realized I had to practice a little, and I pretended, on that day, that I was out in left field trying to get a guy at home plate. And I threw it in that manner. It worked out fine.

TOTENBERG: At the Supreme Court, Stevens has been a real force. During his nearly 35 years as a justice, he authored some 400 majority opinions for the court on almost every issue imaginable. During his tenure, he was seen as an increasingly respected and influential justice, a man beloved by his colleagues for his decency, his unassuming nature, and his tough inner core.

Appointed by President Ford, Stevens was labeled a moderate conservative in his first decade. But with the court turning increasingly conservative over the years, by the time he retired, he was seen as the court's most liberal member. So, did he change - or the court?

PAUL STEVENS: Well, I think, primarily, the court has changed. There's some issues that I've learned more about over the years, and my views have certainly changed on some. But for the most part, I think that the change is a difference in the personnel of the court.

TOTENBERG: You mean the composition of the court.

PAUL STEVENS: Right, yeah.

TOTENBERG: Both the change in Stevens and the change in the court are illustrated by the issue of the death penalty. As he observes, when he first joined the court, he voted to revive capital punishment, overturning a de facto moratorium imposed by the court four years earlier.

PAUL STEVENS: I voted to uphold the death penalty. And I thought, at the time, that if the universe of defendants eligible for the death penalty is sufficiently narrow, so that you can be confident that the defendant really merits that severe punishment, that the death penalty was appropriate.

But what happened over the years is the court constantly expanded the cases eligible for the death penalty, so that the underlying premise for my vote in those cases has disappeared in a sense.

TOTENBERG: In short, as moderate conservatives retired and were replaced by more hard-line conservative justices, the court changed the rules.

PAUL STEVENS: Not only is it a larger universe, but the procedures have been more prosecution friendly.

TOTENBERG: The court, he notes, has become more permissive in allowing prosecutors to object to seating jurors who have qualms about the death penalty. So, instead of getting a random sample of jurors, jury panels are more supportive of the death penalty. In addition, the court now allows the relatives of crime victims to testify during the penalty phase of a capital trial.

These so called victim impact statements were once ruled too incendiary to be permissible, but four years later a more conservative court reversed that decision. All of this, says Justice Stevens, has changed the nature of the death penalty as he and the court envisioned it in the 1970s.

PAUL STEVENS: It tends to load the dice in favor of the prosecution and against the defendant. Now, that's all subsequent to our original decisions. So, I really think that the death penalty today is vastly different from the death penalty that we thought we were authorizing. If the procedures had been followed that we expected to be in place, I think I probably would've still had the same views.

TOTENBERG: Indeed, his 1976 vote to uphold the death penalty is the one he regrets.

PAUL STEVENS: I think there is one vote that I would change and that's one - was upholding the capital punishment statute. I think that we did not foresee how it would be interpreted. I think that was an incorrect decision.

TOTENBERG: Other than that, though, Stevens is feisty in defending both his majority opinions and some of his famous dissents as well. Flag burning? He still thinks the court was wrong to strike down a law making flag desecration a crime. Bush versus Gore? He still thinks the court overstepped its authority and should have left the recount to the state of Florida. And campaign finance? He doesn't think that money is speech.

PAUL STEVENS: Can you hear it talk or can you read it? It's simply not speech; it's one of the things that make speech possible. And I have to confess, my own views are that there is an interest in trying to have any debate conducted according to fair rules or treat both sides with an adequate opportunity to express their views. We certainly wouldn't, in our arguments in this court, we wouldn't give one side a little more time 'cause they could pay higher fees to hire their lawyers or something like that.

TOTENBERG: Justice Stevens' practice was to write his own first drafts of opinions - unlike many of his colleagues who delegate that task to law clerks. But Stevens says that for him, writing it out was the best way to be sure of his position.

PAUL STEVENS: If you write it out, your reasoning will either make sense or it won't. And if it doesn't, you change your vote or you change your whole approach.

TOTENBERG: So, then you give it to your law clerks.


TOTENBERG: So, what do you tell them is their job?

PAUL STEVENS: Well, their job is to prevent me from looking like an idiot.

TOTENBERG: The law clerks check facts and sometimes make only minor changes; but on other occasions, says the justice, they rewrite his draft entirely - a rewrite that he sometimes embraces in whole or part and sometimes rejects - in the nicest way, of course.

The important thing, though, says Stevens, is that in examining a question he often changes his mind. What at first blush may look like a simple case with an easy answer, turns out to be something quite different - a point that he observes seems to be lost at Senate confirmation hearings.

PAUL STEVENS: The senators sort of expect the new nominee to know all the answers now. But this is a job in which you get briefs from lawyers, and you start out with sort of an expectation of being taught a little bit about the issues before you have to decide. And there's an awful lot you learn on almost every case. You don't know all the answers when you start, and if you think you do, you're kidding yourself.

TOTENBERG: Tonight, on ALL THINGS CONSIDERED, Justice Stevens talks about his own father's prosecution for embezzlement, and subsequent exoneration, and his life on the Court.

Nina Totenberg, NPR News, Washington.



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