A Conversation with Justice John Paul Stevens

good afternoon I'm Tom Putnam director of the John F Kennedy Presidential Library and Museum and on behalf of Tomic knot and all of my library and foundation colleagues I thank you for coming and acknowledge the generous underwriters of the Kennedy Library forums lead sponsor Bank of America Raytheon Boston capital the Lowell Institute represented here today by bill Lowell the Boston foundation and our media partners the Boston Globe Xfinity and WBUR we're privileged to have here with us today not just one but two former Supreme Court justices so first let me thank and acknowledge our primary speaker Supreme Court Justice John Paul Stevens you honor us sir with your presence and second let me recognize his friend who traveled from his home in New Hampshire to be with us for this special occasion Justice David Souter I was struck in reading justice Stevens's memoir five justices that the biggest concern expressed during his Senate confirmation hearing in 1975 was the state of his health since at the age since at the age of 55 he had recently had heart surgery he went on of course to be the third longest-serving Supreme Court justice retiring thirty-five years ago at the age of 90 35 years later at the age of 90 when naming him when naming him to the court President Ford stated that he chose justice Stevens as quote the finest legal mind I could find and not only has his mind remained a j'l but is in such good physical shape that only a few years ago when throwing out the first pitch at a Cubs game at Wrigley Field he got the ball right across the plate though he did admit at lunch that during his daily swim in the ocean in Florida this winter he did on occasion need help from a neighbor when walking back to the beach through the surf so while we are mostly here to learn about your judicial insights justice Stevens we confess to being equally intrigued to know your secrets for healthy living it is fitting in this setting to also note a concern raised by Senator Ted Kennedy during the confirmation hearings who asked if there was anything in justice Stevens's record that would indicate whether he would be fair to claims uncertain asserted on behalf of underprivileged citizens those who the senator described as having submerged aspirations and in response Justice Stevens referenced one of the most important opinions he had written as a circuit judge which upheld a prisoner's right to a hearing before parole could be revoked as well as personal letters of support from inmates who appreciated his decision to suffice it suffice it to say he won easy confirmation with a final vote tally of 98 to 0 we will hear more this afternoon about justices Stevenson's term on our nation's highest court where he was known for his plain spoken style and a vision of American justice propelled by common sense and moral clarity our moderator this afternoon is David Barron the s William green professor of public law at Harvard Law School the former acting assistant attorney general for the office of legal counsel and President Obama's Justice Department and a former law clerk to John Paul Stevenson will be taking written questions today so our staff will be going around with index cards please write your question down and we'll bring them up to people I'd also like to recognize colleagues who are here with us today for Mount Vernon including its president Curt V bronze on display in our museum for the next few weeks is George Washington's personal copy of the United States Constitution and Bill of Rights with his handwritten annotations I hope you all have a chance to see it throughout his career on the Supreme Court Justice John Paul Stevens was known not only for the many opinions he wrote when in the majority but also for his strong belief in the importance of dissent if you disagree he once wrote you should say so in fact he holds the record for the most dissents written by a single justice a whopping 720 allow me to conclude with three brief examples noting how much the court had changed during his tenure he wrote a dissent in a case striking down race-based enrollment policies in public schools stating quote it is my firm conviction that no member of the court that I joined in 1975 would have agreed with today's decision and what has been described as a barnstorming dissent of the Citizens United case he offered the following wry observation while American democracy is imperfect few outside the majority of this court would have thought its flaws included a dearth of corporate money in politics and he concluded his dissent on the Bush v Gore ruling that ended the dispute over the Florida recount with these words although we may never know with complete certainty the identity of the winner of this year's presidential election the identity of the loser is perfectly clear it is the nation's confidence in the judge as an impartial guardian of the rule of law ladies and gentlemen please join me now in welcoming to the Kennedy Library David Barron and one of the most impartial guardians of the rule of law in our nation's history the Honorable John Paul Stevens good afternoon and welcome to the candy library this is a great honor for me having worked for the justice and having been subjected to many questions by him I now get to ask a few through my former boss I want to start at the very beginning and some of it comes out of the book that Tom mentioned which is five Chiefs that the Justice wrote I was joking to my wife that since you've retired I think you've written more than I have and I get paid to do this so but I want to before getting to the book talk a little bit about how you got onto the court and the confirmation process as Tom mentioned it was a 98 to nothing vote but the whole process sounds so different to read about it how it worked then then how it works today how did you first get into the mix of being nominated when did you learn that you were being considered well I guess I learned that I was being considered when after Justice Douglas resigned I guess I got a coat a phone call from Bob's Frakker who was my colleague on the court of appeals who said he was all excited about the VEX somebody called him asked questions about me and for something said some relationship to the vacancy I don't remember exactly what it was but anyway Bob Sprecher was the first one that brought the matter to my attention then you were nominated in 1975 by President Ford correct and did you have an interview with President Ford before that or how did that come about no as a matter of fact I first met President Ford had a dinner at the White House about 10 days before he made the decision and it was a large dinner it was attended by a number of federal judges and and their their wives and some other other dignitaries but there was no formal interview either with the President or with the Attorney General and at that dinner he came over and joined us at our table for about 15 20 minutes we had a nice conversation he was talking about the financial crisis in New York City at the time and I can still remember being impressed about two things about he was you immediately liked him he was a very likable man and secondly you also recognized he was a very intelligent man and he was a good lawyer he talked about of the different negotiations that were going on over the financial crisis and it was clear to me that he had a clear grasp of what was going on both sides of the issue and so forth and I can still remember being very impressed with him both because I liked him because I saw this guy's really a good lawyer so then after that dinner I guess he liked you too yes he then nowadays you to the Supreme Court and that process also to read about in the book sound so different than what a confirmation process is today did the White House or the department justice help you prepare for those hearings or how did that work the answer is no they didn't they they did two things for me one they arranged meetings with the Senators duty for interviews before the hearing started I spent a whole day and at the Capitol growing from one office to the other and that was because couple years before the Senate had rejected the confirm had refused to confirm judge Hainsworth of the Fourth Circuit who was really a qualified candidate but Judge Haynesworth it was there was a question raised about whether or not he should have participated in some Court of Appeals decision and he he had gone ahead and said and during the questioning of him during the hearings themselves the the Senators got an unfavorable impression of him because he had a speech defect and he didn't the Senators did not realize that they thought of he was not being candid in his responses and so after that event the Senate decided that before the hearings would start they would have informal meetings between the nominee and the Senators in their offices just on a one-to-one basis so that they get acquainted and that kind of mistake would not happen again and I have to say that was a really an enjoyable part of the process because I met him most of the United States senators who in a personal way they've been elected and important elections they're all all pretty nice guys and I particularly remember my meeting with Barry Goldwater who was also a particularly nice guy he had flown every aircraft in the military and was I won't say it was a nut about flying but he was very much interested in aviation and when he learned that I had my own single-engine airplane I was in that was the kind of meeting that we had for the most part now there was one other thing which I thought was interesting also in the same vein about how different the confirmation process was you had a meeting with Strom Thurmond yes I did at the time the main issue that was before the court was the constitutionality of capital punishment there was a couple years earlier the court had decided the Furman case and people were speculating about how how I might vote on that issue and I didn't really know I had had no strong feelings one way or the other about it and I was leery about being asked about that issue but when I met senator Thurmond I struck hands with everybody in his office there must have been a hundred people houses they can remember but anyway at the end of our greeting he said you had Stevens I'd like you to come back to my office I won't talk to you but I thought to me so here it comes he's going to ask me about the death penalty and we went back into his office and so sat down and he said judge Stevens I want to talk to you about the death penalty I'm not going to ask you how you feel about it because that would be highly improper but I want to tell you how I feel about and then he made a strong statement of why he thought it was a proper enforcement tool but I thought it interesting how he thought it was proper not to be pressing a nominee about views on issues that would be coming before the court and then you say at the end of those confirmation hearings I think to get out of the area well one of the things that Pharma just did for us they I'm my former law partner Edward Rothschild was one of the best lawyers in Chicago for many many years he it was was my lawyer and friend a counselor during the hearings he came to all the hearings and the Department of Justice sent a chauffeured vehicle to pick us up in the morning and take us to the hearings every day but the last day of the hearings we had to get a cab to get off so how do you you have now watched 30 40 years of the confirmation process for judges developing since that time it's obviously become a very very different thing your confirmation hearing was two years after Roe and I think not a single question about Roe was asked that's right at the confirmation hearing so what's your assessment of what's happened well I have to refer to my good friend David Souter the answer that question there was no television during my hearings but when I was watching the hearings about David at a few years later the hearings began with statements by the Senators about how important the hearings were and they took up on all morning all afternoon my hearing started the Attorney General talked from maybe half a minute the Senate two senators from Illinois said there favors in favor of the nomination and the head of the American Bar Association committee on the judiciary spoke that took about 30 seconds for all four of them and say and then they started questioning now the fact that they're telling that hearings are televised asthma had obviously has had a significant impact on what goes on at the hearings so I was going to save this question for later but it's relevant but I also think against the answer what do you think of televising Supreme Court arguments well the the answer I don't feel strongly about it as I know David is one of the reasons for not doing it is we might have lost him earlier than we did but there are two sides to it on the one hand it's clear that it would be desirable for the public to have a better understanding of the court because I think that members of the public would be very favorably impressed if they could see an oral argument and actually see that the justices are fully prepared know what the issues are about and are engaged in trying to figure out what to do so that they're televising would perform an educational function which would be a strong positive on the other hand just as it's true of the confirmation hearings when you introduce television into it and they and of the event that it has not been present before you don't know what might happen it might have an adverse effect on the on the deliberations I can't be sure but there have been cases when high visibility cases when the lawyers basically argued to the press Rev and arguing to the justices I remember one abortion case for example which I won't say the lawyers ignored the court but they were more interested in the public reaction that they could generate than they were in the arguments and I think there's a serious danger that the quality of the courts deliberations might be adversely affected by introducing television so I think on balance that they are wise not to change something when you're not sure what the consequences of the change might be so now I don't know if everyone knows this but the Justice connections the court goes back much further than the 30 years that you served on it because you started as a law clerk yes on the court to justice Wiley rightlet's and we were talking before these proceedings began about the odd circumstances that led you to ending up with Justice Rutledge which was that it was the consequence of a coin toss that's right that's right so how did that come about well there was another I graduated from Northwestern in law school and there were two of us in the class who had better grades and most of the students did and we were we were pretty close in our our scholarship might also happen to be good friends this man was arts eater who later practiced in Chicago and Detroit and is now retired in a Virginia but the Willard works who was on the faculty and later became secretary of labor in the cabin and Willard Patrick who later became Dean of one of the glossed rolls out and in the West both had a pretty certain commitments but they were quite sure that they could be successful and getting his clerkships one would be with the Chief Justice Vinson and the other would be with Wiley Rutledge but the Vinson the courtship wouldn't begin until the year a year ahead and whereas the Rutledge clerk was right away and they decided to let us decide which which to take we both felt like we were senior citizens we've been there three or four years older than normal Roth law school graduates because we've gone through World War two but anyway we they let us make the choice we couldn't agree so we had to flip a coin and I won the coin flip and I got a clerk with Rutledge right away so that brings me to the book because the other justice that you could have chosen but didn't was Chief Justice Vincent correct and he's the first of the Chiefs that you describe in your memoir of the five Chiefs that you've had occasion to work with and one who stands out with the chief you first served under and that's Warren burger and you are quite favorably impressed by many aspects that I've Chief Justice burgers tenure but one aspect that you talk about is how he ran conference and the way he ran at relative the way other Chiefs you've worked with have run conference could you tell us a little bit about that and just give us a sense of what is conference how does it work well this could be a long speech and I'll try do that to you but they're the conference's that just deal with certiorari well that's not right Friday the Friday conferences first you deal with your cert petition and then you just but decide the merits of cases have been argued that week you also have a conference on Wednesday that week to decide the cases that were argued on Monday for the week and on Wednesday you design the Mundy cases Friday decide the Tuesday and Wednesday cases and Chief Justice burger was not the best presiding officer imaginable in the conference he tended to explain how he felt about the case then he tended on occasion to interrupt others and add something he forgot to mention before and so forth and he sort of vacillated back and forth and sometimes and that clearly made up his own mind on how he would vote in the particular case but he was not a good presiding officer whereas his successor bill Rehnquist and John Roberts were just the opposite they both were excellent presiding officer very orderly thoroughly prepared about the cases and led the discussion very impartially and now what happens at that conference so do you debate the issue or is it eats justice sort of says their position cast their vote and then we tally up and see who had the most votes so how does it work well the way it works now talking about the last two is that the justices explain speak in order of seniority explaining first normally for example John Roberts will explain what the issues are in the case in a succinct way he does it very very capable and very impartial and then he sets forth his own views about how the case should be decided and then they you go around the table in order of seniority and and you cast your vote after explaining what your thoughts are this I might say is different from the practice that obtained many many years earlier when I was a law clerk then they went down the table discussing the case but nobody voted until the junior justice and then he voted in reverse order of seniority and I've I always thought was that that was the better way to do it because even if it's just a tentative vote in conference once you've taken the position there's a sort of a tendency to stick to that position whereas if nobody's voted at all it's a it's a more of an open open forum and it's interesting i sat next to bill Rehnquist in those days and he had also been a law clerk before as you know and he shared my view of that time we raised it two or three times without any success but after he became chief his views change and he liked the idea that he spoke first but and how much debate or opportunity is there for debate and discussion among the justices about a case well the there's no there's no time limit in conference every justice has the opportunities because as long as he or she wants to it's unlikely unlike the argument but in most of the cases the first time the justices have exchanged views about a case is during the oral arguments when they're asking questions they might try to make a point that they think the lawyers have not made or something like that but but then the first time they really discuss it in a in a deliberative way is during the conference can you say why that is I mean why not you know case comes in it's an interesting case the healthcare case or the gay marriages case they're so huge in their potential importance aren't you tempted to walk into other people's offices and debate it or discuss well is there a reason why they wait till they know that happens from time to time and an important cases you might feel very strong nobody could want to talk to someone about the case but generally speaking all of the justices are so busy they need the time to think through the cases for themselves and try to figure out what position to take and so that they generally are happy to wait till the conference itself before they share views but I'm sure there are individual cases where there's the departure from that routine let me talk a little bit about how you go about actually writing an opinion so you always wrote the first draft of the opinion and you always made a point of writing out the facts yes of the case and it was always a little startling as a law clerk to walk into your office and you had all the books up on your desk and you were busy trying to piece together the fact of before you would let a law clerk see the draft of the opinion that's normally true yet what why is that why did you think that was such an important thing for you to take the charge oh well again there's a historical answer to it that's what Whaley Rutledge did he wrote everything out on the yellow pad in his own handwriting and normally it his first draft would be what was printed later there would often be a footnote says ammonite JPS gets sites and we'd have to footnote to something but he wrote it out wrote among himself and I thought that was a good practice and he tended to write longer opinions than many justices did but there are a lot of reasons for it I don't want to take too much time on this but he felt that the losing lawyer was entitled to know that his argument had been understood before it was rejected and he always thought it was quite important to him to have an opinion that that demonstrated to the reader the the the issues had been thoroughly considered and rejected and so he tended to write it right along yes anyway and that plus the fact that I had had some experience and the court of appeals with Judge John Hastings who always wrote out his and I remember he told me shortly after I won in the Court of Appeals if you write out the facts carefully and thoroughly the case will usually decide itself and it's true with its when you're working with the facts the facts can be really terribly important in the in the outcome of the case the point you just made about how important you thought it is for each lawyer before the court each party before the court to have the view is considered by the individual justice just reminds me something when I was clerking that you said that as always stay with me that it's a court but you also thought I'm a judge an individual judge still on that Court which I think explains in part why you dissented as often as you did in the sense that you felt if a judge on the court of justice on the court had a view of the case everyone was entitled to know that justices view and that that was more important perhaps than the whole court being on the same page is that fair under my god no that's fair and a plus of it then there's another historical explanation for them goes way way back but before I became a judge I participated in some hearings involving an allegation of impropriety against members of the Illinois Supreme Court and the I was just surprised during those hearings when we went through the papers of the judge to find that the two best judges on the court had dissented from the case which was being investigated but had not published their their dissents I remember thinking at that time whether the public is entitled to know of it and that's stuck with me over the years and I came to the conclusion that if one dissents from a case it's dissenting from the case that's part of the decisional process and the public really ought to know that and so I decided early and one of the questions that's seminars on newly appointed appellate judges consider is whether when to dissent when not to dissent because there's a also a contrary view is that the court should try and portray the law as a seamless web in which everything fits off fits together but it really doesn't and so I just thought it it's part of the obligation of a judge would really be to tell what tell your own views about a case even if they differ from from the majority so we have some questions from all of you that I want to get to but I want to ask you about three cases that Tom made some reference to at least two of them but the first one is a case that's very recent and that's the healthcare case and it's not an issue I know that you care deeply about which is the federalism issues in the scope of national power a lot of people were surprised if not by the outcome of the case by the lineup of the case that the Chief Justice had joined the for more liberal members of the court to uphold the Health Care Act what was your reaction were you surprised by how it came out or no no I really wasn't and I very seldom brag about my ability to predict outcomes because I'm notoriously wrong most of the time but just so happens and I meant mentioned this the other day that my law clerk Idina Mishra who was with me at the morning of the cases were handed down and I talked about the case and we knew what there was the end of the term so we knew the case went to come down that day and I happened that would be in the courtroom I won't explain why and I said do I think that they the government is going to win five to four and the reason is the Chief Justice is unit of out in favor of the the government and the reason that as I did not anticipate his particular reasoning in the opinion but I have complete confidence in his intellectual integrity and I think he was totally convinced I mean I thought the law was going to compel that result and I thought he was going to follow the law and he did and I it was my appraisal of John Roberts that persuaded me to make that prediction and I was right yes you certainly were now in another case I guess which you and the Chief Justice disagreed was the Citizens United case right and you disagree quite strongly with it but I don't know if everyone knows the history when you first came onto the court the very first campaign financed a big campaign finance case was being decided by the court that very year which was Buckley versus Valeo that's the case that it equated money with speech you couldn't participate in the case that's right at the time so you just saw the drafts floating around and you said that the drafts were enough to give you a long lasting distaste for this whole line of jurisprudence Citizens United has obviously attracted enormous amount of controversy and its wake where do you think it fundamentally went wrong and what do you think is likely to happen in the future there's a lot of talk about maybe a constitutional amendment to correct it do you think that would be a wise idea well it took me 90 pages was it to really explain my views in my dissent and I have not changed my views about about the merits of the case or the issue generally but I'm not sure that the the basic error that goes through that case that landed juror it doesn't go all the way back to Buckley against Vallejo in which they up they held unconstitutional limitations on expenditures I think that was the basic mistake that not should not have been made it does seem to me that there's a sentence in the Buckley opinion that's quoted over and over again about how you can't handicap one side of a debate by a man but you can't give an advantage to one side of the debate by putting a handicap on the other side which makes complete sense under most issues other than campaign issues but in certain situations it's important to limit the opportunities of both to speak an example is oral I units before the Supreme Court we put limits on how much you can speak both in writing and orally and it seems to me that that as long as the limits are reasonable and sufficient to permit adequate exposition of ideas that the the legislators should be able to put to limit the total amount of speech devoted to campaigns in an election so not merely the fact that the corporate speech was permitted or it was encouraged by that but the very very basic point about whether there's there should be some limits on the total suite and I think there should be and now there's a part of my question you didn't answer but you may have chosen not to answer but I'll come back to it which is you recently wrote a book review in the New York Review of Books and I don't know if any of you have had a chance to read some of Justice Stevens reviews but they're really wonderful essays online one of them was on a book I think called framed about the need to change or bring Morris yes read to change some of the constitutional provisions that are outdated or outmoded and and it raised the issue of whether the Constitution we have now is good enough right or should there be improvements on it and in that connection that really has been a lot of talk around campaign finance and whether the court's ruling makes it necessary to amend the Constitution do you have thoughts about that I'm not sure how that's connected to the review on frame but that's all right yes yes I do i I think it would be it would be the public would benefit from an amendment that authorized legislators to put put limits on the amount of money that can be expended in campaigns they should not be too low because there is a danger that incumbents have an advantage by by their back they're in office so so they have to be reasonable but you don't have to allow this tremendous amount of to spend a repetitive commercials over and over again which are not remaking arguments there particularly persuasive but I do think that a constitutional amendment would be desirable so the last case I want to ask you about before getting to questions relates to the gay marriage cases and the Defense of Marriage Act which I know was before the court at present I guess we'll hear about it in a month or so but those cases come to the court with traces of your own influence because the earliest version of disputes over gay rights at the court was obviously Bowers versus Hardwick correct but that case began to crumble a bit in a case called Romer versus Evans which was a Colorado case and you were serving not as the Chief Justice but as the senior associate justice at the time which gave you the power to assign him and when the Chief Justice was not in the majority and you chose to give that opinion to Justice Kennedy who wrote the opinion in Romer and then went on to write the opinion relying on Romer that overruled Bowers versus hard work which is the lorentz case how'd you decide to choose Justice Kennedy for that decision I really can't remember with any any particularly I just as I did with every assignment I had to make I thought he'd do a good job with the opinion and he did I mean I thought about all I can say about that and now a case like this as momentous of cases the gay marriages cases could be a case that also figures in the public imagination in the same way in terms of the spotlight that goes on the court was Bush versus Gore two things about that that I want to ask you about the first is whether you saw it coming in other words as all the controversies going on you're watching on television they're counting the Chad's I can interrupt you there and say Justice Scalia saw it coming he mentioned it in several and at the time he mentioned I thought I thought that's not before us now I'm not not apt to be before us for a long time so I did not see it accompany and then you were at a Christmas party I guess the night before was Justice Breyer where there was some decide you're talking about the gay rights no no no the no no the Bush versus Gore oh oh I'm sorry that's okay what was the question again what inverse inverse versus gourd did you see that that was going to come to the court and that the court would get involved in it or was that a surprise to you that the court well there was a an application for a stay that was followed and the court had to act on the application for a stay and I think both I saw Stephen at the Christmas party at the melon art gallery to have a party for it before Christmas and we talked briefly about it and we both thought there's nothing to it and we both were sort of surprised that there the chief had even called a conference for the next day so I was surprised that the Chiefs decision to ask for a conference the next day and I was even more surprised at the results of the conference but I'm not sure I was and in the wake of that case there was a lot of concern as you express potentially in your dissent in that case about what it would do to the reputation of the court and I know some people may have seen justice O'Connor recently said that she had second thoughts or was at least questioned whether it was wise for the court to have gotten involved in that case well let me just correct one slight difference between what you will you phrase the question and what I said in my dissent I was concerned about the impact of the decision on the rule of law as articulated by judges because I thought it tended to create the impression in the public that non-judicial factors might have voted motivated motivated the decision of the Florida Supreme Court and I thought it was quite unfair to create the impression that they might have acted in a way that was not characteristic of the judicial office and I really think that I had in mind the what I considered the improper impression that that decision created about the rule of law generally which included the actions of the Florida Court as well as their own Court and it's very important to me to remember that it wasn't just our court but the Florida Court and I thought at the time that this was a decision given the fact that they were essentially passing on what the Florida Statutes am and so forth in which we should have shown more deference to the state Supreme Court of Justice I want to get to questions that you've submitted to us and I want to make sure that we get to them so let me start some I think are probably from students that we have here and then some from people who are not students so here's a question that I will enjoy asking but I know the answer to it do law clerks ever write decisions right do law clerks ever write the decisions yes you've heard of the practice elsewhere yeah okay here's the question which I bet you will dispute the premise of and it concerns affirmative action and the question is why has your stance on affirmative action changed over your years on the court well that really is a complicated question and it's not so much the my stance on affirmative action it's the different kinds of issues that are lumped together under the title affirmative action I think there's a vast difference between action deciding on who can become a member of a student body because the diversity in the classroom is terribly important and the same considerations do not necessarily apply to whether there must be diversity and I gang the workers working on a highway or something like that they're doing their different problems they overlap but and I have changed your summary stamp it but not as much as the question implies how would you characterize the change okay how would you characterize the change and you were thinking on that issue well I've seen more tangible benefits from affirmative action than I had expected to and I think it's true that it has helped the educational process particularly but the first case that might have been been a change is the Jackson against Michigan case where the question is whether a student body in Michigan would benefit by having an african-american teacher in instead of having an all-white faculty and it seemed perfectly obviously that it would but the court nevertheless felt told otherwise yeah here's a question about one of the Chiefs in your book which is Chief Justice Earl Warren he was by all accounts a successful chief justice and the governor of California and as a consequence the person writing the question asks that says that some have argued recently that a politician would serve the court well as a member and you note in your book that at present everyone I think saved one of the members of the court was a federal appellate court judge beforehand do you think that it would be good to have a diversity of yeah yes I do I I think I think it's healthy to have diversity in a number of different areas and I I do think there all sorts of qualifications for a Supreme Court position that do not necessarily require experience on an appellate court justice O'Connor she was had some legislative experience I guess when she was and then she'd also been a judge she had been a judge that's yeah okay so this is an interesting question do you think 9 is the right number yes and why well you need nod number because in case of ties you have to be able to decide the case and it's the way the court has worked for a long long time and I'm kind of a believer in tradition that things that work okay for a long time probably should be preserved okay what outside of your legal training do you think most prepared you for the Supreme Court and the cases that it has faced I don't know I've often thought it may well have been my experience in practice is the most important part of my education because I was very blessed by having two very fine lawyers as partners one who was a good football player another was a good basketball player I had a you know but the practice of the law is very it's a it's a wonderful educational experience one learns a much much more than then you realize if you have a general practice not you if you specialize in some narrow specialty I suppose that's probably not true but the law practice of very interesting in and good profession just to give you an example a story that I always like about your practice was that you were a counsel to the Senate on the antitrust examination temp ssin in baseball to the house representatives okay you were counsel to the house yeah on whether baseball should get an antitrust exemption and in that connection you had the occasion to cross-examine Ty Cobb well that's true actually I that there wasn't much to the cross-examination but I remember the interview much better than the pre-trial later but you might be interested and going back to those earrings particularly because Jackie Robinson is such an important person in the current thinking about the integration in baseball I also had a chance to interview a branch rickey we did and the most important thing I still remember if my interview with mr. Rickey was he said something like do you know what it really is required to have a successful athletic team I said no he said keep him hungry and so they'll have an ambition to make more money and I often think about that one I think but what athletes make today I guess maybe I don't know whether he was right or they're right or what but the world is certainly different in the athletic fields that I just know I know that's true of the the Boston Red Sox are not they're doing better this year you'll be glad to know so there's a question about why you retired when you did which we'd have to say you gave sufficient service so you were entitled to retire but how do you how did you come to that decision what goes through your mind and making that judgment well there are two factors one I had an understanding with my good friend David Souter before when he was on the court that he but he would tip me off he became convinced that I started to lose my marbles and he agreed but then two years before the and before I started to lose my marbles he retired so I did a lot stir I lost my my protector so that was one major factor in the decision and the second in all honesty is that in my descent when I descended in this in the Citizens United case I had a little trouble articulating my oral dissent I stumbled two or three times in my my statement that seemed to me this is not characteristic maybe you should think twice about trying to continue on the job can you talk a little bit about oral dissents because I know that's something that people don't appreciate as much maybe that they they happen to the extent that they do so there's the actual written opinion and then when there's a case I guess that you feel very strongly about you'll also write an oral statement that you'll deliver at the time the case is announced how do you decide when you're going to do that or not well you might be interested in in the background of that that was a position that justice Harlan had explained to Justice Stewart that he thought at least one case every term should be the dissent should be announced orally so the public would realize they were human beings and that merely working on written written opinions and so and I remember Potter telling me that and it's been true every term that I've been on the court at least one does then has been announced orally and I remember I think I mentioned this in the book that this first or second year when Nino Scalia was on the court at one of our parties at the end end of the term we had a party with a lot worse and so forth Byron white and I were talking about that very issue and said we don't we haven't had an oral descent yet nino came up and we joined our conversation and we both suggested to him that he ought to announce orally his dissent in the you know the name of the case the one involving the executive one of the business and one of whoreson yeah morrison personal yes Olson and so he did he decide he went ahead and announced this and he he preserved the tradition I'm not sure he still remembers that Byron I suggested that that dissent took on a life of its own and and helped establish his his reputation as a fine fine justice so just as we have one time for one more question or one more okay so we'll see if you answer this if you don't all ask a different one you've worked with these members of the court for a while who are now on it what do you think they will do in the Defense of Marriage Act what do you think they should do well I'll tell you what I think both what what they should do what they probably do I think they can the attack on the constitutionality of the defense they act a very persuasive case because the the impact of the tax laws is really screams out that this is pretty unjust so I really expect them to hold that statute unconstitutional in the other case I just find it difficult to find standing in the part of the people who are defending the California Proposition and my judgement would be they will dismiss that petition as having been improper improvidently granted I thought they would do it the week after are you but dead wrong there so I may well be wrong here but my guess if I had to make it yes it they will dig that case and they'll hold the federal statute I'm invalid justice Stevens I just want to say again on behalf of myself as your former clerk but on behalf of the Kennedy Library and all the people who came out to see you today it's been a great privilege to hear about your life and your thoughts about the law

Channel: JFK Library

Views: 12,520

Rating: 4.8333335 out of 5

Keywords: Justice John Paul Stevens, John F. Kennedy Library, Supreme Court, David Barron, Jurisprudence

Id: XhNm0luwYfo

Length: 51min 39sec (3099 seconds)

Published: Sat May 25 2013