Ask the writer: Interview with Justice John Paul Stevens

Ask the writer: Interview with Justice John Paul Stevens


Kate Shaw is a legislation professor at Cardozo Regulation Faculty. She clerked for retired Justice John Paul Stevens through the 2007-2008 time period.
Final week, Justice John Paul Stevens sat down for a wide-ranging phone interview with me. The event was the latest publication of his memoir, “The Making of a Justice: Reflections on My First 94 Years” (Little, Brown and Firm, 2019). A frivolously edited transcript of our dialog follows.
Query: Thanks a lot for agreeing to do that, Justice. The e book is fantastic, and it comprises not solely nice biographical element, however numerous new insights for these of us who educate a few of the circumstances you focus on within the e book.
Justice Stevens: Properly, anyone who is ready to wade via your complete e book is entitled to excessive reward.
Query: No, it’s very readable! So — will you inform me a bit bit about why you determined to write down the e book?
Justice Stevens: I used to be simply attempting to suppose that via if you referred to as. I actually don’t know. I began to write down in regards to the celebration, on my 94th birthday. The mission simply grew after I began.

Query: So that you didn’t sit down intending to write down a complete autobiography?
Justice Stevens: No I didn’t, I positively didn’t. I didn’t have a clearly outlined function at any time in determining what to write down within the e book.
Query: Do you suppose having spent so a few years writing just about full time, the absence of a giant writing mission created an area you wanted to fill with one thing and so that you determined to do that?
Justice Stevens: Sure, I’ve all the time loved writing, and I feel that it simply received me began, after which I simply — needed to maintain going.
Query: Let me ask you a bit bit in regards to the strategy of writing the e book, as a result of it’s so detailed: There are descriptions of your first-year constitutional legislation professor’s particular lectures, and depositions you took as a younger lawyer in Chicago, after which in fact numerous behind-the-scenes particulars concerning explicit opinions whilst you had been on the Supreme Court docket. What was your methodology? Did you rely principally in your reminiscence? Did you could have journals that you simply saved alongside the way in which, or did you depend on your papers from the court docket?
Justice Stevens: It was really a mix of various issues. Once I received as much as the court docket, it occurred to me that I ought to ask my legislation clerks for assist, and I wrote a letter to all the clerks, asking them for his or her recollections of their very own phrases.
Query: You probably did! I despatched some recollections in.
Justice Stevens: In fact, a few of the recollections, the [District of Columbia v.] Heller case itself, or Bush in opposition to Gore, a few of these, I had fairly agency recollections of. I knew I used to be going to cowl them, and I did.
Query: What about your time earlier than the court docket — did you retain journals if you had been younger, or did you principally depend on your reminiscence in reconstructing these occasions?
Justice Stevens: I principally relied on my reminiscence. That was just about your complete foundation for the stuff about my pre-court years.
Query: Wow! That’s unbelievable recall, Justice.
Justice Stevens: Properly, they had been fairly memorable occasions that you simply don’t overlook. Assembly Charles Lindbergh or Amelia Earhart or seeing Babe Ruth hit a house run. You don’t need to have a lot of a reminiscence to have these issues come again to you if you begin fascinated by your childhood and so forth.
Query: You probably did have a lot of fairly unbelievable encounters in your childhood. Let me ask you to speak about one thing else you write about within the e book, which is your early publicity to the prison justice system. Once you had been 12, your father was charged with embezzlement for transactions involving loans to save lots of your loved ones lodge, which was in misery after the inventory market crash of 1929. The Illinois Supreme Court docket later unanimously reversed his conviction. May you speak a bit bit about what impression that early expertise had in your later views on prison justice?
Justice Stevens: It definitely satisfied me that from time to time, prison justice can go incorrect as a result of my dad was something however a prison. He was a really wonderful man and fully sincere. My recollections of him had been educating me to inform the reality and issues like that. That was an essential occasion in my adolescence. There’s little question about it.
Query: You suppose it instilled a level of skepticism in regards to the outcomes of the prison justice system?
Justice Stevens: Sure. It’s a system which is a wonderful system, but it surely makes numerous errors. The truth that it’s able to making errors is one thing we must always take into accout after we authorize one thing just like the demise penalty which is simply — it can not presumably be defended by the legislation of averages or one thing like that. You simply shouldn’t put anyone to demise until you could have absolute certainty on the problem of guilt or innocence.
Query: I need to come again in a few minutes to that. Let me keep together with your adolescence for only a few extra questions. I hadn’t identified that you simply labored in your school newspaper on the College of Chicago. You wrote some editorials and opinions; you served in a management place. I used to be going to ask whether or not you suppose that have had any long-term impression, whether or not it formed you in any respect as a author, or by way of your interactions with the press over time.
Justice Stevens: It did have an effect, I’m certain. I keep in mind it as an essential a part of my school life. I don’t know if it affected my views on any explicit concern, but it surely definitely had an impression on my basic curiosity in writing and that form of factor. Whether or not it coloured my views on the constitutional rights of free speech and one thing like that, I actually don’t know.
Query: I used to be going to ask in a associated vein about your basic view of the press protection of the court docket and its opinions. Do you suppose the Supreme Court docket press corps offers the general public an correct sense of the work of the court docket, simply on stability?
Justice Stevens: I feel they do a remarkably good job — to learn Monday’s output and summarize it in time for the following version of the paper requires some fairly clever work. On the entire, I feel the common reporters do an excellent job.
Query: Simply a few extra questions on your adolescence. The chapter in your naval service comprises numerous new element about your wartime expertise; it’s a completely fascinating a part of the e book. I used to be going to ask you to speak for a minute on how formative that have was, the way you suppose your time within the navy impacted the sort of justice you’d later change into, and your choice to share these particulars within the e book.
Justice Stevens: In fact, after I joined the Navy and after I took up the correspondence course in cryptography, I needed to signal an oath that I might by no means reveal what kind of work I used to be concerned in. It was just some years after the conflict that Congress handed a statute relieving me of that obligation. Numerous that was completely secret for a lot of years after World Struggle II. I don’t suppose the permission to explain it has made all that a lot distinction proper now. However the service did have an effect on me. I feel my votes within the flag circumstances [Texas v. Johnson and United States v. Eichman, in which Stevens dissented from decisions holding that statutes prohibiting flag-burning violated the First Amendment] had been little question influenced by my navy experiences. Little question about that.
Query: Within the e book, you describe the method by which you bought your clerkship with Justice Wiley Rutledge — on the advice of two professors on the college of Northwestern, with no interview, and after you and your co-editor-in-chief of the legislation overview flipped a coin to determine who would get the Rutledge clerkship and who would clerk for Chief Justice Frederick Vinson. The hiring of Supreme Court docket legislation clerks is in some methods fairly totally different at the moment — anybody can apply; there are in-person interviews. However in fact, professors nonetheless play an essential gatekeeping position. So I used to be going to ask whether or not you suppose the method actually could be very totally different at the moment — and if that’s the case, is at the moment’s course of a greater one?
Justice Stevens: I’m not certain it’s fairly as totally different because it seems to be. Even at the moment after I rent legislation clerks, I’ll pay particularly shut consideration to the actual one who’s recommending somebody. For instance, some judges I’ve particularly excessive regard for, and a few legislation professors additionally carry extra weight than the common. It nonetheless may come all the way down to an important advice, which could really decide the end result. So I’m unsure the method is admittedly as totally different because it seems to be.
Query: I see. What in regards to the interview? Does the interview make some distinction?
Justice Stevens: Sure. I all the time prided myself on my means to decide on good clerks, and one of many key components was whether or not I assumed I would really like the individual. If I received alongside effectively with an individual in an interview, I used to be more likely to rent that individual. It’s only a query of non-public give and take which you develop in your interviews.
Query: OK, I used to be going to ask about if you had been a younger lawyer in non-public follow in Chicago earlier than you turned a choose after which a justice. Within the e book you point out at a couple of factors that you simply had been a Republican. There isn’t a very robust sense of partisan identification that comes via, although at one level you point out that in these days, the Republican celebration was nonetheless the celebration of Abraham Lincoln. So I used to be going to ask in the event you’d be prepared to touch upon what your partisan identification or formation was like in these early years?
Justice Stevens: It actually had nearly nothing to do with my life or my follow of legislation. I had been born a Republican. My dad was an energetic Republican, however he was not energetic in politics and I actually by no means was both. It’s true that I did belong to that celebration, but it surely actually had little or no impression on my public work or my non-public views.
Query: One other episode in your early skilled life is the interval you spent serving as minority counsel on the Monopoly Energy Subcommittee of the Home Judiciary Committee. I’d all the time had the impression that it was a really formative expertise, particularly by way of your views on statutory interpretation. I used to be questioning in the event you may speak a bit bit about that — the way it impacted your view of how the court docket ought to method decoding statutes.
Justice Stevens: It was actually an essential a part of my profession as a result of it was the primary vital public job that I ever had. In fact, I feel the working relationship between the members of the 2 events was far more wholesome at the moment than it turned afterward. Nearly all the problems that got here earlier than the committee, the members of the committee didn’t method them in a partisan sense in any respect. They actually labored collectively on the investigations and their position in them. I simply have a unique impression of the attitudes of the members — it was very totally different then than I feel it’s now.
Query: What about particularly by way of the position of legislative historical past and different interpretive units in decoding statutes — how do you suppose that have affected your method to answering interpretive questions, deciding learn how to handle ambiguity in statutes?
Justice Stevens: I by no means actually thought there was any cause to be skeptical about legislative historical past. Throughout my years as a practising lawyer, it simply was a part of your research of what Congress was attempting to say of their statutes. I by no means actually thought of judges or students as both those that used legislative historical past or those that had been against it till after I received on the court docket. It appeared to me, clearly, that if you’re attempting to determine what a gaggle of drafters meant in what they wrote, something that sheds mild on the historical past is acceptable to think about.
Query: One associated query — I consider that it’s the case that Justice Stephen Breyer is now the one member of the court docket with any substantial legislative expertise. On the identical time, all the most up-to-date appointees have served in some capability within the government department. Does which have any vital implications both for statutory interpretation or perhaps in separation of powers circumstances?
Justice Stevens: I had not likely targeted on that change, but it surely in all probability is important, and it could have an effect on the work of the court docket.
It could be that Justice Sandra Day O’Connor’s expertise as a legislator and Justice Hugo Black’s expertise did have an effect… being extra acutely aware of the general public penalties of the choices. I simply haven’t actually considered it, however I do suppose that there’s a failure to pay sufficient consideration to the general public impression of selections … and that’s fairly unwise.
Query: You speak within the e book about a few of the political patronage circumstances, particularly out of your time on the U.S. Court docket of Appeals for the seventh Circuit, however extra lately the partisan-gerrymandering circumstances. One factor that comes via in each of these strains of circumstances is your early and constant view that the Structure imposes a fundamental responsibility to control impartially. Are you able to elaborate a bit on the place that constitutional rule comes from, and when you have any touch upon the court docket’s latest, and naturally now ongoing consideration of challenges to partisan gerrymanders?
Justice Stevens: In fact, I feel it’s a simple concern and they need to have determined it a very long time in the past. What they’ll do with it, I don’t know, but it surely all the time appeared to me completely apparent that the federal government official has to behave impartially. I feel the constitutional supply of that’s the equal safety clause of the 14th Modification. I feel I stated that on a number of events. I feel in the event you simply concentrate on the significance of governing impartially, you may’t presumably defend partisan gerrymandering. It’s diametrically against the responsibility to behave impartially. It appears to me that that’s an obligation that ought to be shared by each public official.
Query: OK, you’ve talked about Heller, and I ought to say it was very sort of you to say my help together with your dissent in that case. I used to be going to ask you to speak a bit bit about why, of all the circumstances that you simply participated in throughout your time on the court docket, Heller is the one that also retains you up at night time.
Justice Stevens: It’s only a recurring downside that confronts us nearly — if not every day, then a minimum of on a weekly foundation. These mass shootings are peculiar to America and are peculiar to a rustic that has the Second Modification. So I feel that decoding the Second Modification to guard the person proper to personal firearms is admittedly simply absurd, and it’s additionally terribly essential. It occurs over and again and again. I feel I ought to have been extra forceful in making that time in my Heller dissent. I don’t blame you any greater than I blame myself for failing to put extra emphasis on that time.
It’s a attribute of American society that isn’t shared by another civilized nation. I discover it actually mind-boggling that my suggestion that we must method the issue by simply eliminating the Second Modification actually has not captured extra common assist, as a result of it’s so apparent that it’s an undesirable a part of our authorities construction.
Query: When Heller was determined, there have been individuals who argued that whether or not it was appropriate or incorrect, it was a victory for originalism, as a result of not solely Justice Antonin Scalia’s majority opinion, but in addition your dissent engaged very extensively with founding-era supplies. I used to be going to ask you to clarify why you determined to battle a lot of the Heller opinion on originalism’s terrain.
Justice Stevens: I didn’t actually suppose on the time or I don’t suppose now that the query of whether or not originalism is sound constitutional interpretation had any explicit relevance to the end result of that case. We’re attempting to know what the draftsmen of the supply meant, and numerous the proof is dependent upon the truth that New York and Philadelphia and Boston had native legal guidelines that will have been unconstitutional beneath the modification as construed at the moment. That’s the purpose that Justice Breyer made so successfully in his dissent. I didn’t consider it by way of whether or not we had been combating an originalist battle or only a commonsense battle.
Query: I wished to ask about Bush v. Gore, which can be a captivating a part of the e book. You finish your dialogue of that case by saying that you simply “want that the general public confidence that the Court docket had earned when it ordered President Nixon to supply tapes containing proof of his wrongdoing might be so simply restored,” however that you simply “stay of the view that the Court docket has not absolutely recovered from the injury it inflicted on itself in Bush v. Gore.”
So there’s this suggestion that each the Nixon tapes case and Bush v. Gore are notably essential circumstances on the subject of the general public’s religion within the court docket as an establishment.
What particularly makes these circumstances so essential? Each concerned presidents or potential presidents — is that a part of it? Is it that the court docket seems to many individuals to transcend partisanship in United States v. Nixon, whereas many individuals learn Bush as representing the court docket succumbing to partisanship?
Justice Stevens: The opposite factor that’s a big level in each circumstances is the standard of the bulk opinion. The opinion within the Nixon case made numerous sense; there was actually not a lot doubt in regards to the correctness of the choice. However the majority opinion in Bush in opposition to Gore is even worse than I assumed it was on the time. I learn it over extra rigorously engaged on the e book. I discovered that the opinion is internally inconsistent in addition to simply not making any sense. The standard of judicial work in each circumstances is a big facet of the significance of the circumstances.
Query: Just some extra questions, Justice. The time period that I clerked, along with being the Heller time period, was the time period during which you introduced in Baze v. Rees that you simply had concluded that the demise penalty couldn’t be constitutionally administered. You prompt earlier that there’s a straight line between your early expertise with the prison justice system and that 2008 opinion, however clearly you had been on the court docket for a few years earlier than asserting your conclusion in regards to the demise penalty. Had you lengthy anticipated that you simply had been shifting in that route? Did it shock you if you received there?
Justice Stevens: It did shock me. I actually keep in mind studying John Roberts’ opinion within the case and considering his entire enterprise of it doesn’t make any sense. It actually dawned on me through the deliberations on that case, that the demise penalty actually can’t be justified on the grounds that ostensibly supported it. I actually suppose it seems to be simply fairly incorrect. It actually dawned on me when engaged on that case.
Query: Studying the chief justice’s writing in that case was what crystallized it for you?
Justice Stevens: I feel that’s proper.
Query: Wow. OK, so in the midst of getting ready this e book you revisited practically 4 a long time of Supreme Court docket selections. I used to be going to ask whether or not you got here away with any new insights into the court docket’s remedy of precedent. On stability, has the court docket been sufficiently protecting of stare decisis or constant in its remedy of precedent, each traditionally and, to the extent you want to touch upon it, in recent times and at the moment?
Justice Stevens: I feel it’s been insufficiently respectful of prior selections via the years, actually starting with Justice Thurgood Marshall’s writing in his dissent — the final dissent that he wrote [in Payne v. Tennessee]. I additionally dissented within the case. It’s a victim-impact case. And I actually suppose it’s gotten even worse within the lack of respect for that doctrine that the court docket has developed over time.
To say within the case they determined a pair weeks in the past [Franchise Tax Board of California v. Hyatt], overruling a case I wrote, for six justices, and 5 justices overruled it. It made me suppose, perhaps once they overrule they ought to seek out out whether or not a minimum of nearly all of the judges who’ve addressed the problem agree with it. As a result of overruling Nevada in opposition to Corridor — it makes completely no sense by way of — wanting into the long run. As a result of states have been sued within the courts of different states so hardly ever, that you simply may simply as effectively have a rule you may observe slightly than change it 20 years later for a unique rule that clearly isn’t any higher than the opposite one. In fact, my very own views about sovereign immunity made the case notably straightforward for me. However the causes given for overruling it don’t make numerous sense in any respect. In fact, you may’t spend numerous time criticizing it as a result of its impression on the legislation — as a result of this occurs so hardly ever, a couple of times in 15 or 20 years. However to overrule the case? It simply doesn’t make any sense in any respect. [Justice Clarence Thomas’] opinion for almost all actually doesn’t clarify why they wanted to take a second have a look at it anyway.
Query: Sure, he has solely a really brief dialogue of stare decisis, and Breyer’s dissent appears to recommend that the case’s inadequate respect for precedent has significance past simply the slim immunity concern introduced within the case. Do you agree with that?
Justice Stevens: Sure, certainly. I definitely do.
Query: Your dialogue simply sort of answered this query. I used to be going to ask how a lot you retain up with the court docket as of late. I collect you learn most of what they produce?
Justice Stevens: Sure I do. It’s a principal supply of my studying. I’m a bit bit behind proper now, however I do sustain with their work.
Query: Only one extra query. I used to be going to ask about proposals to vary or reform the Supreme Court docket. Numerous proposals to vary the court docket by growing its dimension, altering choice strategies, imposing time period limits — a few of which have been round for a while — appear to be attracting extra public consideration as of late. I used to be going to ask in the event you had any curiosity in commenting on any of these proposals.
Justice Stevens: I feel the quantity 9 is correct. They need to follow that. In time maybe they’ll come again to their senses on a few of the points. I don’t suppose the treatment is altering the dimensions of the court docket.
Query: OK, Justice, I respect your taking the time to do that. Take pleasure in the remainder of the day, and I hope you get some ping pong or some swimming in.
Justice Stevens: Thanks very a lot.
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