An interview with Justice Stevens
on Nov 3, 2011 at 3:10 pm
Earlier this month, retired Justice John Paul Stevens sat down with one of his former clerks, Stanford law professor Jeffrey Fisher, for an interview. The occasion was the Justice’s publication of Five Chiefs, his memoir on his time at the Court and his relationships with five different Chief Justices. During their interview, the Justice discussed several topics – such as the Court’s decision-making process, political gerrymandering, the confirmation process, and the death penalty – that have not received much attention in other interviews about the book, and which are likely to be of substantial interest to our readers. The lightly edited transcript of their interview follows.
Question: Where did the idea come from to write this book?
Justice Stevens: Well it’s kind of a mixture of things, actually. I accepted a number of invitations to go to local bar groups and such, and to answer questions and things like that. One after another wanted me to compare the three Chiefs that I’d actually worked with on the bench. Then later on I thought to myself: actually, I’d had contact with five, and I thought maybe it would fit together in a book. As you know, I like to write, so I started just working on the darned thing.
It also occurred to me that there is a misunderstanding about the office of the Chief in two dimensions: one is that some people think the Chief really runs the show, and whatever he decides is going to be the law, whereas in fact he has one out of nine votes and that ought to be made more clear.
The other thing, people are unaware of the fact that he does have a significant number of duties that are unrelated, just due to the fact that he’s a member of the Court. The Smithsonian Institute, for example, and the various appointments he has to make — he has a lot of appointment authority. So it occurred to me that there may well be some public interest in a little more understanding about the office itself.
Then I started writing and I put in some personal reminiscences dating back to my days as a clerk and other things and — out of the germ of the different Chiefs I actually turned it into a book.
Question: So as you’re writing, who was the audience you had in mind? Was it a different audience you had in mind from when you were a Justice, writing opinions and dissents and the like?
Justice Stevens: It’s a different audience. I suppose the initial audience is people who asked me questions at these sessions. But then inevitably the audience had to include lawyers and people who were interested in the Court. So it’s kind of a mish-mash in a way, in different levels.
Question: One other question on a general level before talking more specifically about the different Chiefs: The office of the Chief Justice of this Court is selected differently than a chief judge on a federal court of appeals. On this Court, the president selects the Chief, and that person may or may not be someone with prior experience on the Court. In contrast, in the courts of appeals, the chief is determined according to seniority.
Justice Stevens: That’s right.
Question: I wonder whether, having served on both of those levels of the judiciary, you see pros and cons to the different ways of selecting chiefs – and, in particular, to the practice of sometimes bringing a new Chief to this Court who hasn’t previously served on the Court. (You write about one Chief, Chief Justice Rehnquist, who was elevated from within, and others who were brought in to be Chief.)
Justice Stevens: First, as you know there’s really no legal requirement that the Chief on this Court be separately appointed; it’s just something that just developed. But I like the system we’ve got here. It seems to me that it’s appropriate to have one person be the sort of public image of the Court when you’re requesting readjustment of salaries or where the Court has to make some kind of appearance or statement. I think it does make sense to have one individual serve for a long period of time in that capacity. And frankly with someone as qualified as John Roberts, he’s a wonderful representative of the Court in the international community and so forth
I think this system is one that should be preserved.
Question: Turning to the different chapters of the book, one of the things that leaps out to me are the different internal procedures the Court has used over the years. For example, you mention that when you were a law clerk under Chief Justice Vinson, the Court’s conferences [at which the Justices cast their initial votes on cases and vote on cert. petitions] ran differently than they do now. Back then, there was a rule that everybody had a chance to speak once before anyone voted. Now, by contrast, Justices vote in conjunction with making their initial comments. Do you think that difference matters in terms of outcomes?
Justice Stevens: I think there might well be cases in which the outcome could be affected. I remember debating this with Byron White, among others, who said, “Well really the vote is never firm until the whole conference is over — in fact until the opinion is released.” And, as you know, votes change from time to time.
But I do think that the old model tends to give the junior Justice a better opportunity to convince more senior members of the Court if everybody has withheld his or her vote until everybody has had something to say. It just seems to me it’s a better way to proceed. And as I think I say in the book, Bill Rehnquist and I used to sit next to each other in the conference when I was a junior Justice and he was next most junior, and we both raised it once or twice, and he felt the same way then. But he became Chief, and he changed his view.
Question: What do you think changed his view?
Justice Stevens: He became Chief.
Question: He wanted to vote first, do you think?
Justice Stevens: I think — that’s right, he recognized the fact that the order of precedence may have an impact.
Question: Interesting. Well, this topic raises something else that I’ve thought about from time to time – namely, the fact that most of the Court’s internal deliberations are done on paper and not through personal meetings. In my experience, people are often surprised to learn that the Justices don’t spend more time in a room or all together or in smaller groups, working things out face to face orally. Were things any different in that respect under Chief Justice Vinson, and if so, do you have any views about whether either mode of decision-making is superior to the other?
Justice Stevens: My impression is that the Justices spent more time talking to each other and the clerks under Vinson. When I law clerked, for example, I think there was a lot of proselytizing by Frankfurter. He definitely made an effort to cultivate both his colleagues and the law clerks in other chambers.
At the same time, I think then there may well have been much more of that than I am aware of during my tenure as a Justice. I’m only talking about my own experiences, and I just didn’t do much of that, as you know; I very rarely participated in any pre-argument discussions or anything other than the conference. I thought it made more sense to work independently and writing.
But there are cases in which I’m sure that there were group discussions that went on. Casey, the abortion case, is an obvious example, where Justices Souter and Kennedy and O’Connor ended up writing a joint opinion. There are probably others where during the process of getting ready or completing an opinion, a Justice may have felt a need to work with one or two other colleagues in greater detail. So we’ve got to be careful not to overgeneralize, as you know, different cases and —
Question: But in general it seems like the decision’s been made that the Court’s work is better off done with a short conference, and then simply writing back and forth?
Justice Stevens: I think that’s right.
Question: And you tend to agree with that as a better way to reach decisions in the Court?
Justice Stevens: I do, although also I never hesitated to call a colleague or have a colleague call me about a particular aspect of a case. I did have a number of conversations during the decision process, between the argument and the issuance of the opinion.
Question: That raises one other potentially related issue: The Court is much more active at oral argument now than it used to be. Do you think there’s a relationship between how active the Court is on the bench and how little the Justices talk to each other off the bench?
Justice Stevens: I do. As I’m sure you remember, the oral argument is generally the first time that the Justices have had any kind of conversation with one another about the merits of the case.
Question: In the book, you discuss the fact that Chief Justices (as well as Justices) sometimes have taken on duties outside of the Court. For example, you discuss Chief Justice Warren’s decision to chair the Warren Commission and Justice Jackson’s involvement in the Nuremberg trials. I confess I couldn’t quite glean from the book whether you think it’s appropriate for a Justice to step outside of the Court in this way.
Justice Stevens: I think it’s basically inappropriate. And I think Chief Justice Warren felt that way too. But I think President Johnson persuaded him that it was in the national interest to perform the job — and I think that may well have been true, with respect to that particular assignment. But I do think it was a mistake for Justice Roberts to get involved in the Pearl Harbor inquiry at the time and I think he did a lousy job; it was just a very superficial investigation. It was done to build up military morale and so forth but that was I think quite clearly a mistake. I also think it was a mistake for Justice Jackson to take on the job he did. There should be a very strong presumption against that sort of thing.
Question: Let me ask you a more substantive question, arising from your discussion of Reynolds v. Sims and the voting rights cases that the Warren Court decided. One thing that you have long urged is that the Court ought to care a lot more than it does about partisan gerrymandering.
Justice Stevens: Absolutely.
Question: And at the same time, of course, you also have argued that the Court should stay out of politics in certain instances. I wonder how you would envision the Court getting involved in something as crass and divisive as partisan gerrymandering while maintaining the public perception of political independence.
Justice Stevens: Well it goes back to the fundamental equal protection principle that government has the duty to be impartial. When it’s engaged in districting it should be impartial.
Nowadays, the political parties acknowledge that they are deliberately trying to gerrymander the districts in a way that will help the majority. I just read a newspaper article the other day about the Maryland redistricting, which is designed to help the Democrats. That’s outrageously unconstitutional in my judgment. The government cannot gerrymander for the purpose of helping the majority party; the government should be redistricting for the purpose of creating appropriate legislative districts. And the government ought to start with the notion that districts should be compact and contiguous as statutes used to require.
Question: And you think that if the Court got involved in reviewing these kinds of redistricting plans that there would be a way to fend off accusations that the Court is choosing sides in political warfare?
Justice Stevens: Oh absolutely. If the Court followed neutral principles in whatever rules they adopted, the rules would apply equally to the Republicans and Democrats. I think that line of cases would generate a body of law such as the one-person, one-vote cases that would be administered in a neutral way. This is one of my major disappointments in my entire career: that I was so totally unsuccessful in persuading the Court on something so obviously correct. Indeed, I think that the Court’s failure to act in this area is one of the things that has contributed to the much greater partisanship in legislative bodies now that wasn’t true years ago when I worked on a sub-committee of the House Judiciary Committee.
Question: You say in the book that when you were nominated to the Court, you made the judgment it would be inappropriate to comment during the confirmation process on issues that you hadn’t decided as a judge on the Seventh Circuit because sometimes studying the briefs in a real case would inform your judgment and change your mind. I was wondering, looking back now, how often it in fact happened that you picked up a set of briefs and the briefs altered your thinking or led you to vote differently than you were inclined to before picking them up?
Justice Stevens: I can’t give you a number but many, many times. I mean the thing that really strikes me is how often I read the petitioner’s brief and thought, “Boy that’s really a good idea.” Then I read the respondent’s brief and thought, “Gee, I missed something.” And it switched my mind. Then I read the reply brief and I’d get back where I was. There are many, many cases in which I came out differently than I thought I might when I first saw a case, and that even happened in oral arguments. You know, you learn very often in an argument about the significance of a particular point. You may have realized it helped one side but not fully grasped how it fits together.
That’s one reason why I think that the whole confirmation process overlooks a very, very simple, basic premise: judges are not supposed to know all the answers before they hear the argument or before they know about the issue. Some senators want to know what a nominee’s views are going to be on a particular issue. And the right answer should be, “Well I’ve got to read the briefs and think about it.” That’s the kind of judge that really should be confirmed, one who doesn’t know all the answers.
That’s why I frankly think all this business of preparing nominees for the hearings and having — I guess they even have moot court sessions. I just think that’s wrong. If the nominee is qualified for this job, she shouldn’t have to be prepped for the hearings; she should just be able to go in to testify. And if they ask her about something she hasn’t thought about, she should say, “I don’t know.” By analogy, a young lawyer shouldn’t be expected to have all the answers. You’ve got to have the courage to say, “I just don’t have the answer but I’ll study it and see what the right answer is.”
Question: That point raises a related question. One of the things I’ve been trying to research lately is the extent to which lawyers matter in the Court — who a litigant’s lawyer is and what kind of arguments the lawyer makes. Do you think lawyering sometimes affects the outcome of cases?
Justice Stevens: It does affect outcomes. Every now and then, for example, there’ll be a lawyer who’ll come before us, and you will recognize the lawyer as somebody who tried to sell you on a point that the lawyer should have known was not well-founded in the law or tried to misrepresent the record or something. If you hire a lawyer who has put his foot in his mouth before you may be doing yourself a real disservice.
Question: One thing you discuss in the section dealing with Chief Justice Burger is the Court’s dealings with the death penalty. Of course, when you first took the bench, the constitutionality of the death penalty was quite unsettled. Yet in 1976, you joined a seven-Justice majority of the Court in Gregg v. Georgia and related cases allowing states to reinstate capital punishment. One of the last things you did before retiring, however, was to note in your concurring opinion in Baze v. Rees that you had concluded that the death penalty (at least as currently administered) is unconstitutional. If I’m not mistaken, that made you the fifth member of the Gregg Court ultimately to conclude the Eighth Amendment prohibits capital punishment. Justices Brennan and Marshall dissented in Gregg; Justice Blackmun later changed his mind; and Justice Powell wrote after retirement that he believed that the death penalty was unconstitutional.
Justice Stevens: Well, you can add to that group – this is my own hunch, I don’t know for sure – but I think probably Potter Stewart would have come out the same way too, because the law changed in a way that really would not satisfy the conception of capital punishment that we thought we were upholding. Potter believed that the death penalty should be quite narrowly applied, and it’s become much broader in application.
Question: As we move to the tenure of Chief Justice Rehnquist, obviously one of his trademarks was to be efficient in the Court’s use of time. He not only changed the order of voting in conference, but you say in your book that conferences got a lot shorter.
Justice Stevens: Oh yes they did, definitely.
Question: Do you think that was an improvement?
Justice Stevens: It definitely was an improvement over Warren Burger. Bill Rehnquist was very intelligent, as you know, and he definitely followed the discussion, kept track of what every Justice’s views were and understood the arguments, whether he agreed with them or disagreed with them. And he was really a very, very good lawyer, there’s just no doubt about that. So he ran the conference better and I think he did a better job of assigning cases to people who would really reflect the views of the majority best and so forth and so on. So those are definitely pluses.
At the same time, I think maybe that there were times when he would urge everybody to terminate the discussion more promptly than we felt was appropriate.
Question: I see. One of the things about Chief Justice Rehnquist that I gather from your book that you have the sense that he really had two different personas: inside the building with his colleagues and friends and co-workers he was quite informal and easygoing, while on the bench he was generally considerably more stern. Given that the latter persona was the one exposed to the public, do you think he was somewhat misunderstood?
Justice Stevens: I’m not sure, but one thing I should have put in the book is that when he went to moot courts and so forth, law students and others sometimes expected to meet a very unfriendly, stern guy. And they were uniformly captivated when they met him and had a chance to talk with him. I remember many, many instances where I got feedback that law students were surprised to discover what a nice guy he was.
Question: In the book you give a few examples of Justices’ opinions that influenced public policy. For instance, you note that even though Justice Scalia’s dissent in Morrison v. Olson, the independent counsel case, did not carry the day in the Court, it seemed to have an effect on Congress. You also mention Chief Justice Vinson’s words that persuaded the Illinois Legislature to change its post-conviction law. Is it safe to conclude from your remarks that you think it’s appropriate for Justices to offer views on issues of public policy, even when unrelated to the legality of laws?
Justice Stevens: I think you have to divide issues into two broad categories. I think that it’s highly appropriate for the judiciary to talk about issues — even hot policy issues — that relate to the administration of justice, such as habeas corpus litigation and judicial salaries and other things that you think affect the judiciary. There I do think it’s part of the job to share your views about issues with legislative bodies and the bar in general.
But on an issue like whether abortion is wise policy or not – that is, an issue unrelated to the administration of justice — that’s quite different. And it seems to me that it really isn’t appropriate for judges to offer views on such subjects.
Question: Do you think one could take the dichotomy you’ve described a step further? Should the Court have more leeway in construing the text of constitutional provisions or statutes that deal directly with procedures for the administration of justice than it does with respect to other, more substantive issues?
Justice Stevens: That’s right. Let’s talk about the health care cases for just a second. I don’t have the slightest doubt that some members of the Court have very strong views one way or the other on the merits of the universal health care statute. But I also don’t have any doubt at all that when they approach the constitutional issue in that particular case, their views on the merits will not affect their decision in the slightest. There’s a clear distinction between the policy issue and the constitutional issue. I’m sure that all members of the court will focus on the constitutional issue and not be distracted by their views about the policy.
Question: Since you brought up the health care case — I don’t want to ask you anything directly about it of course — but I was curious on a personal level whether there are sometimes still cases where you wish you could cast a vote.
Justice Stevens: No I haven’t felt that way about any case. I kind of am enjoying being an observer.
Question: And are you observing the Court’s docket very closely?
Justice Stevens: Well I don’t observe the cert grants and that stuff, but I have read all the opinions, and I do reflect on them and I’m happy just to be one who digests the work product. I have to say that — you probably went through the same thing — when I ceased being a law clerk I thought I was going to read every opinion that was decided. I couldn’t have been more wrong. There just wasn’t the time. But I have read all the opinions since I retired.
And they made some real, real blunders in some of the pre-emption cases that are just quite wrong. And I must say Justice Sotomayor has done a magnificent job in writing some opinions in that area.
Question: One other substantive subject that comes up during the chapter about Chief Justice Rehnquist is sovereign immunity. You’ve always felt very strongly about the subject. Why do you think it is something that people really ought to care about?
Justice Stevens: There are two reasons I discuss that as much as I do. First, for those who believe that it is important to maintain a strong sovereign immunity defense, I frankly don’t think people have generally given Bill Rehnquist the credit that that he’s entitled to for his role in reviving that area of the law.
Question: Why do you think he felt so strongly about it? Why did he care so much?
Justice Stevens: I really don’t know. But he did. And of course it fits into the view generally of states being immune from intrusion by the federal government; it’s part of a whole states’ rights history and so forth.
But – and this is the second reason I discuss the subject — it’s important that federal rights be given a fair hearing in federal court, and that people who are injured by violation of federal law should have a remedy. And very often — not very often, but a significant amount of time those violations are committed by state agencies. It seems to me there should be, just as a matter of elementary justice: the mere fact that a state has committed a clear violation of law should not make that violation go unremedied. It’s just part of a plain basic philosophy the plaintiffs ought to have the same access to justice as defendants do.
It’s true that the concept of sovereign immunity survived the drafting of our Constitution, but what survived was a common law rule, and common law rules are generally subject to change by legislatures having authority to legislate in a particular area. Thus, Congress should be able to make the rules and decide whether the state has a defense or it doesn’t. The notion that because of the prevalence of the common law rule and its acceptance by most states at the original period of the formation of the country it should survive forever, notwithstanding the majority of the Congress thinking otherwise, doesn’t make any sense at all. It’s really — as you can tell, the more I think about it the more I just find it mind-boggling.
Question: I thought one of the more interesting things in the book was your discussion of the assignment power. You say, for example, that you wanted to spread things around so that particular Justices weren’t particularly identified with certain issues.
Justice Stevens: That’s right.
Question: Was there sometimes a countervailing consideration – that is, a desire to assign opinions in a certain area to a Justice who had particular expertise on the subject?
Justice Stevens: Not really. Warren Burger gave tax cases to Harry Blackmun because Harry was really an expert in taxation. But that’s the only instance, the only area where I’m aware of picking a particular Justice because of expertise. I know I assigned a couple of cases to Clarence Thomas where he’d written something in the past that showed he would do a particularly good job on the opinion, and he did. I think I made a couple of very good assignments to Clarence. And I also was happy whenever we were on the same side because I thought it’s good to break away from the public perception that everything’s 5-4 because you know every case depends pretty much on the issue.
Question: One last question. In the course of writing this book and spending time the past couple of years doing other things, have you developed any views about the role that a retired Justice can or should play in our legal culture?
Justice Stevens: Well, as I’ve told you in many other instances, you learn as you go along. And I’m learning about opportunities in retirement that I hadn’t dreamed about. I never thought I’d write a book review about the death penalty, but I got interested in the subject and so I did. And I’ve got another one coming out soon on Professor [Bill] Stuntz’s book on the collapse of the American justice system, which is a very interesting book. As I’ve said, I think you learn that judging is a constant learning process. Being a retired judge, you learn about different opportunities and things that will keep you busy and make the position enjoyable.