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Justice Stevens Reflects On The Court And Its Chiefs

President Ford nominated John Paul Stevens as an associate justice of the Supreme Court. Stevens took his seat on Dec. 19, 1975.
J. Scott Applewhite
President Ford nominated John Paul Stevens as an associate justice of the Supreme Court. Stevens took his seat on Dec. 19, 1975.

After 35 years serving on the Supreme Court, Justice John Paul Stevens retired last year. Appointed by President Gerald Ford in 1975, Stevens was the third-longest-serving justice in the court's history. Now 91, he spends his days playing tennis, lecturing and writing. But instead of legal briefs and opinions, Stevens is now sharing personal stories from his time on the Supreme Court.

His newly released memoir, Five Chiefs: A Supreme Court Memoir, is about the five Supreme Court chief justices he personally knew: Fred Vinson, Earl Warren, Warren Burger, William Rehnquist and John Roberts. Stevens clerked during Vinson's appointment, practiced law during Warren's tenure, and served on the court with Burger, Rehnquist and Roberts.

In a wide-ranging conversation with Terry Gross on Wednesday's Fresh Air, Stevens discusses his career as well as his views on some of the decisions handed down from the court during his 35 years on the bench.

In his final decade on the court, some of his best known opinions were his dissenting ones — in Bush v. Gore, which stopped the Florida recount; and in Citizens United v. Federal Election Commission, which ended restrictions on corporate spending in elections.

Stevens also wrote the opinion for the court in two cases that successfully challenged the Bush administration's approach to the war on terrorism: Rasul v. Bush, which said detainees at Guantanamo had the right to challenge their incarceration in American courts, and Hamdan v. Rumsfeld, which ruled against the Bush administration's plan to use military tribunals at Guantanamo. Legal journalist Jeffrey Toobin describes those decisions as "the summit of Stevens' achievements on the bench."

Interview Highlights

On the role of the chief justice

"He has the same role as every other justice in the sense that he does his best to persuade others to share his views, and each of the rest of the justices do the same thing. If he ends up being one of the five [justices] in the majority, he has the same responsibility that he has if there's a unanimous opinion. Namely, he assigns the author of the opinion to express the views of the majority."

On becoming more liberal over the course of his time on the Supreme Court

"Those terms are a little bit misleading because you have so many issues that you address as a member of the court that on some issues you might be regarded as, to use your word, as a liberal, and on others you might be regarded as a conservative. And it's difficult to place a simple label on the entire work product of a member of the court."

On his dissenting opinion in the Citizens United ruling

"As I explain in the opinion, there were narrower grounds that would not have caused any major changes in the law. And that could have been used to decide the case. And having explained that, I then get into a discussion of why I thought that the particular cases that the court overruled in that case had been correctly decided and should not be overruled. ... The court has held, I think incorrectly, that the First Amendment protects the right to use money just as though money were speech. And of course, expenditures for campaigns go for many things other than speech, such as travel expenses, wardrobe expenses, public polls. In the Watergate incident, some of that campaign money was used for illicit purposes and should not be regarded as protected by the First Amendment."

On the term 'activist'

"Whenever a court makes decisions that are not necessary in order to dispose of the particular issues of the case, the word 'activist' may apply to that work. But that's not a criticism of the impartiality of the justices on the court."

On the right to bear arms

"I think it's fairly clear that the framers expected the states to have the last say on what kind of use of the people to keep and bear arms should be authorized. They certainly didn't expect, in my judgment, federal judges to have word on what kinds of firearms states could authorize for themselves."

On the Second Amendment

"The more that you looked at the text and the drafting history of the Second Amendment, the more you come to the conclusion that the current court's reading is much broader than what the draftsmen expected."

On his robes

"That's the one tax deduction that judges have, if I can remember. If you buy new robes, that's a business expense and can be deducted."

On the Bush v. Gore decision

"I guess the thing that surprised me the most was the fact that any justice thought there was irreparable injury shown by the petitioners that would justify the action that was taken."

On his viewpoints evolving over time

"Any judge or justice has views that evolve over time because he becomes more and more educated and better able to do certain things. There's been some change in my views about the death penalty, but I think there's more of a change in the jurisprudence of the court that made me eventually reach the conclusion that the death penalty, as it is presently administered, is unconstitutional."

On whether a decision is constitutional vs. whether it is a wise policy

"Chief Justice Burger and Justice Blackmun, for example, originally voted to uphold the constitutionality of the death penalty. Justice Blackmun later changed his views on that particular issue. But both of them were very clear in believing that it was not wise policy. They both came from Minnesota, which does not have a capital punishment statute, and I think they were not fans of the death penalty."

On being in the position of upholding the constitutionality of a ruling while believing that it's not good policy

"The example that comes to mind most readily is [Gonazales v. Raich], a case that we had 7-8 years ago involving the constitutionality of federal enforcement against the use of marijuana in California. [It was] after California passed a statute allowing its use for medical purposes. ... The women involved in the case, who grew marijuana in their own backyard and had strong medical justification for using the drug — I thought it was most unwise to prohibit them from doing so, but I think that it was equally clear that the federal constitution did authorize the federal government to enforce the statutes on the books."

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