TERRY GROSS, HOST:
This is FRESH AIR. Former Supreme Court Justice John Paul Stevens died yesterday at age 99. We're going to listen back to our interview with Stevens.
Justice Stevens was appointed by President Ford and served on the court for 35 years before retiring in 2010. Some of Stevens' best-known opinions were his dissenting ones, including Bush v. Gore and Citizens United. He also wrote the majority opinion for the court in two cases that successfully challenged the Bush administration's approach to the war on terror. Stevens kept writing in his retirement. Last year, he wrote an op-ed for The New York Times after a school shooting, arguing for the repeal of the Second Amendment.
I spoke with Stevens in 2011, after he'd retired and written a memoir called "Five Chiefs."
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GROSS: Justice Stevens, welcome to FRESH AIR. It's an honor to have you on the show. Is it something of a relief to be retired and not have the weight of having to make these really important - you know, opinions on really important cases that will affect the future of the country?
JOHN PAUL STEVENS: The answer is yes.
STEVENS: It's definitely a relief, although I do miss the work and - which I enjoyed very much. But it is a relief.
GROSS: One of your most famous dissenting opinions was also one of your last. It was the Citizens United case for which you wrote a 90-page dissenting opinion. That is - that's really long, isn't it? (Laughter).
STEVENS: That is long. And that's probably why a lot of people haven't bothered to read it all.
GROSS: (Laughter) So this is the decision that overturned constraints on corporate spending in political campaigns and said that limits on corporate spending infringed on corporations' freedom of speech. Why were you so angry about this decision?
STEVENS: Well, I don't know if angry is the word or not. I thought it was incorrect in several respects. At the beginning of my 90 pages, I explain why the court would have been wiser to decide the case on narrower grounds because, I think, it's always good craftsmanship in administering the law to decide cases on narrow grounds, particularly constitutional cases, when you have the opportunity to do so. And as I explain in the opinion, there were narrower grounds that would not have caused any major change in the law that could have been used to decide the case.
GROSS: So you're talking about deciding on narrower terms. And you write that you saw it as conservative judicial activism when the court sent back the lawyers in the Citizens United case and asked them to bring a more expansive version of the case and to address broader issues about the relationship of corporations to the First Amendment.
And the way the Supreme Court decided the case, infringing on corporate spending was seen as infringing on a corporation's right to free speech and also equating a corporation's right to free speech with an individual's right to free speech. Correct me if I got any of that wrong.
STEVENS: You've got it right (laughter).
GROSS: OK. So were you surprised to see the Supreme Court equate a corporation's right to free speech with an individual's right to free speech.
STEVENS: Well, not entirely, because some years ago, Justice Powell had written an opinion in the Bellotti case, which held that the First Amendment does protect a corporation's right to communicate with the public on issues of general public interest. But in that opinion, he carefully distinguished speech about general issues from election campaigns.
See, an election campaign, in many respects, is like a debate between two adversaries, which some believe - including me - that it's wise to have rules that make the debate fair to both sides and lead to a reasoned decision, rather than one based on how much money one has or some non-reasoned factor.
GROSS: A question about Bush v. Gore - you describe the story in the book. It's - the Florida recount is happening in this contested election, and the Bush camp wants to take it to the Supreme Court and have the Supreme Court halt the recount.
And as that process is beginning to be set in motion, you run into Justice Breyer at a Christmas party. And in casual conversation, you both agree this is a kind of frivolous case. It doesn't stand a chance of actually being accepted by the Supreme Court. The Supreme Court isn't going to hear it. Then, much to your surprise, the Supreme Court hears it and rules in favor of the Bush camp and stopping the Florida recount.
What surprised you most in the argument that was made by the justices who wanted to not only hear the case, but stop the recount?
STEVENS: Well, I guess the thing that surprised me most was the fact that any justice thought that there was irreparable injury shown by the petitioners that would justify the action that was taken.
GROSS: So because this was such a big decision and the country was so divided and the election was so close, was there a lot of tension in the court while that decision was in process?
STEVENS: I don't think I should comment on what went on within the court. I can say that it was consistent with what I said at the end of the brief. I think that the justices respected one another for the views that they expressed.
GROSS: It strikes me - of all the Supreme Court decisions that I've ever tried to talk about on the air with a justice - and I've only interviewed you and Justice Breyer - but, like, that one seems like, I don't want to go there. That seems like the decision that justices, like, really don't want to talk about in public.
STEVENS: I suppose that's right. And of course, I don't think it's a decision that has been cited since it was handed down.
GROSS: Now, when you put on your judicial robe, did it transform you in any way? And I'm thinking, you know, how actors always say when they put on a certain costume, they feel more in character. It helps them get into the role. Did putting on the judicial robe give you the sense of, you know, gravity of the occasion?
STEVENS: Well, I frankly hadn't thought of it that way, but it may - that may well be true because it is a solemn occasion when you get ready to go on the bench and confront the issues that you have to confront as a judge or a justice.
GROSS: And are the robes, like, custom-made for each judge, or do you go to, like, a - you know, a robe supply store and just pick out your size?
STEVENS: That's the one tax deduction that judges have...
STEVENS: ...I can remember. If you buy new robes, I think that's a business expense and can be deducted. But, in fact, my original robes were given to me by my former partners when I went on the bench, and I continued to wear them till they got, perhaps, shabbier than they should've.
GROSS: Thank you so much for talking with us, and thank you for your service to the country.
STEVENS: Thank you very much. I enjoyed our conversation.
GROSS: My interview with former Supreme Court Justice John Paul Stevens was recorded in 2011. He died yesterday at the age of 99.
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GROSS: Tomorrow on FRESH AIR, my guest will be journalist Garrett Graff, who's covered federal law enforcement for more than a decade and has been writing about the Border Patrol and the roots of the current humanitarian crisis at the southern border. I hope you'll join us.
Our technical director is Audrey Bentham. Our engineer today is Adam Staniszewski. Our associate producer for digital media is Molly Seavy-Nesper. Roberta Shorrock directed today's show. I'm Terry Gross.
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