A CONVERSATION WITH JOHN PAUL STEVENS PAGE 1

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1 PAGE 1 TOM PUTNAM: Good afternoon. I'm Tom Putnam, Director of the John F. Kennedy Presidential Library and Museum, and on behalf of Tom McNaught 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. [applause] 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. [applause] I was struck in reading Justice Stevens 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 [laughter] of 55, he had recently had heart surgery. He went on, of course, to be the third longest-serving Supreme Court justice retiring three years ago at the age of years later at the age of 90! [laughter] When naming him to the court, President Ford stated that he chose Justice Stevens as the finest legal mind I could find. And not only has his mind remained agile, but he is in such good physical shape that only a few years ago when throwing out the first pitch at a Cubs game in Wrigley Field, he got the ball right across the plate. [applause] 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 record that would

2 PAGE 2 indicate whether he would be fair to claims 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. Suffice it to say, he won easy confirmation with a final vote tally of We will hear more this afternoon about Justice Stevens term on our nation s highest court where he was known for his plainspoken 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 Stevens. We ll 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 David. I'd also like to recognize colleagues who are here with us today from Mt. Vernon, including its president, Curt Viebranz. 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 on a case striking down race-based enrollment policies in public schools stating, It is my firm conviction that no member of the court that I joined in 1975 would have agreed with today s decision. In what has been described as a barnstorming dissent of the Citizens United case, he offered the following wry observation: While American democracy is

3 PAGE 3 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. [applause] 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. [applause] DAVID BARRON: Good afternoon and welcome to the Kennedy Library. This is a great honor for me, having worked for the Justice. Having been subjected to many questions by him, I now get to ask a few to my former boss. [laughter] I want to start at the very beginning. 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. 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 98-0 vote. But the whole process sounds so different to read about it, how it worked then than how it works today. How did you first get into the mix of being nominated? When did you learn that you were being considered? JUSTICE JOHN PAUL STEVENS: Well, I guess I learned that I was being considered when after Justice Douglas resigned. I guess I got a phone call from Bob Sprecher, who was my colleague on the Court of Appeals, who said he was all excited. Somebody called him to ask questions about me and it had 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. DAVID BARRON: Then you were nominated in 1975 by President Ford.

4 PAGE 4 JUSTICE JOHN PAUL STEVENS: Correct. DAVID BARRON: And did you have an interview with President Ford before that, or how did that come about? JUSTICE JOHN PAUL STEVENS: No. As a matter of fact, I first met President Ford at a dinner at the White House about ten days before he made the decision. It was a large dinner attended by a number of federal judges and their wives and some other dignitaries. But there was no formal interview either with the President or the Attorney General. And at that dinner, he came over and joined us at our table for about 15 or 20 minutes. We had a nice conversation. He was talking about the financial crisis in New York City at the time. I can still remember being impressed by two things about him: 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 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 and because I saw this guy was really a good lawyer. DAVID BARRON: So then after that dinner, I guess he liked you, too, because he then nominated you to the Supreme Court. And that process also, to read about it in the book, sounds so different than what a confirmation process is today. Did the White House, or the Department of Justice help you prepare for those hearings? Or how did that work? JUSTICE JOHN PAUL STEVENS: The answer is no, they didn t. They did two things for me: One, they arranged meetings with the Senators for interviews before the hearing started. I spent a whole day at the Capitol going from one office to the other. And that was because a couple of years before, the Senate had refused to confirm Judge Haynsworth of the 4 th Circuit, who was really a qualified candidate. But Judge Haynsworth, there was a question raised about whether or not he should have participated in some Court of Appeals decisions and he had gone ahead and sat.

5 PAGE 5 During the questioning of him, during the hearings themselves, the Senators got an unfavorable impression of him because he had a speech defect and the Senators did not realize that. They thought he was not being candid in his responses. 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 they could get acquainted and that that kind of mistake would not happen again. I have to say, that was really an enjoyable part of the process because I met most of the United States Senators in a personal way. They d been elected in important elections; they're all pretty nice guys. 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 he 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. [laughter] I had his vote. That was the kind of meeting that we had, for the most part. DAVID BARRON: Now, there was one other thing which I thought was interesting also in this same vein about how different the confirmation process was. You had a meeting with Strom Thurmond? JUSTICE JOHN PAUL STEVENS: Yes, I did. At the time, the main issue that was before the court was the constitutionality of capital punishment. A couple of years earlier, the court had decided the Furman case and people were speculating about how I might vote on that issue. I didn t really know. I 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 shook hands with everybody in his office. There must have been a hundred people in the office, I can remember. But anyway, at the end of our greeting, he said, Judge Stevens, I'd like you to come back to my office. I want to talk to you. And I thought to myself, Oh-oh, here it comes. He s going to ask me about the death penalty. We

6 PAGE 6 went back into his office and 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 it. 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 proper not to be pressing a nominee about views on issues that would be coming before the court. DAVID BARRON: And then you say at the end of those confirmation hearings, I think to get out of the area? JUSTICE JOHN PAUL STEVENS: Well, one of the things the Department of Justice did for us, my former law partner, Edward Rothschild, who was one of the best lawyers in Chicago for many, many years, he was my lawyer, friend, counselor during the hearings; he came to all the hearings. 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 home. [laughter] DAVID BARRON: So 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 at the confirmation hearing. JUSTICE JOHN PAUL STEVENS: That's correct. DAVID BARRON: So what's your assessment of what's happened? JUSTICE JOHN PAUL STEVENS: Well, I'll have to refer to my good friend, David Souter, to answer that question. There was no television during my hearings. But when I was watching the hearings about David a few years later, the hearings began with statements by the Senators about how important the hearings were. They took up all morning, all afternoon. When my

7 PAGE 7 hearing started, the Attorney General talked for maybe half a minute, two Senators from Illinois said they were 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 to speak, and then they started questioning. Now, the fact that the hearings are televised obviously has had a significant impact on what goes on at the hearings. DAVID BARRON: So I was going to save this question for later but it s relevant, but I also think I can guess the answer. What do you think of televising Supreme Court arguments? JUSTICE JOHN PAUL STEVENS: Well, the answer I don t feel as strongly about it as I know David does. 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 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 their television 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 an event that has not been present before, you don t know what might happen. It might have an adverse effect on the deliberations, I can't be sure. But there have been cases -- high visibility cases -- when the lawyers basically argue to the press rather than 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. I think there's a serious danger that the quality of the Court s deliberations might be adversely affected by introducing television. So I think on balance they are wise not to change something when you're not sure what the consequences of the change might be. DAVID BARRON: So now I don't know if everyone knows this, but the Justice s connection to the Court goes back much further than the 30 years that you served on it, because you started as a

8 PAGE 8 law clerk on the Court to Justice Wiley Rutledge. We were talking before these proceedings began about the odd circumstances that led you to end up with Justice Rutledge, which was that it was the consequence of a coin toss. JUSTICE JOHN PAUL STEVENS: That's right. DAVID BARRON: So how did that come about? JUSTICE JOHN PAUL STEVENS: Well, I graduated from Northwestern Law School, and there were two of us in the class who had better grades than most of the other students and we were pretty close in our scholarship and we also happened to be good friends. This man was Art Seder, who later practiced in Chicago and Detroit and is now retired in Virginia. But Willard Wirtz, who was on the faculty and later became Secretary of Labor in the Cabinet, and Willard Pedrick, who later became dean of one of the law schools out in the west, both had pretty certain -- not commitments, but they were quite sure that they could be successful in getting us clerkships. One would be with the Chief Justice Vincent and the other would be with Wiley Rutledge. But the Vincent clerkship wouldn t begin until the year ahead, whereas the Rutledge clerkship was right away and they decided to let us decide which to take. We both felt like we were senior citizens; we were three or four years older than normal law school graduates because we d gone through World War II. But anyway, 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 to clerk with Rutledge right away. DAVID BARRON: So that brings me to the book, because the other justice that you could have chosen, but didn t, was Chief Justice Vincent. JUSTICE JOHN PAUL STEVENS: Correct.

9 PAGE 9 DAVID BARRON: 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. One who stands out was the Chief you first served under, and that's Warren Burger. You are quite favorably impressed by many aspects of Chief Justice Burger s tenure, but one aspect that you talk about is how he ran conference and the way he ran it relative to the way other Chiefs you worked with have run conference. Could you tell us a little bit about that and just give us a sense, what is conference? How does it work? JUSTICE JOHN PAUL STEVENS: Well, this could be a long speech and I'll try not to do that to you. But conferences that just deal with Well, that's not right. The Friday conference is first you deal with your cert. petitions and then you just would decide the merits of cases that had been argued that week. You also have a conference on Wednesday that week to decide the cases that were argued on Monday of the week. And on Wednesday, you decide the Monday cases; Friday, you decide the Tuesday and Wednesday cases. 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, add something he forgot to mention before and so forth, and he sort of vacillated back and forth. Sometimes, he had not 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 officers -- very orderly, thoroughly prepared about the cases and led the discussions very impartially. DAVID BARRON: Now, what happens at that conference? So do you debate the issue or is it each justice sort of says their position, casts their vote and then we tally up and see who had the most votes? How does it work? JUSTICE JOHN PAUL STEVENS: Well, the way it works now -- talk about the last -- is the justices speak in order of seniority explaining, first normally, for example, John Roberts will

10 PAGE 10 explain what the issues are in the case in a succinct way. He does it very, very capably and very impartially. Then he sets forth his own views about how the case should be decided. Then you go around the table in order of seniority and cast your vote after explaining what your thoughts are. This, I might say, is different from the practice that came 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 you voted in reverse order of seniority. I always thought that was the better way to do it because even if it s just a tentative voting conference, once you've taken a position, there's a sort of a tendency to stick to that position, whereas if nobody s voted at all, it's more of an 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. He shared my view at that time. We raised it two or three times without any success. But after he became Chief, his views changed and he liked the idea that he spoke first. DAVID BARRON: And how much debate or opportunity is there for debate and discussion among the Justices about a case? JUSTICE JOHN PAUL STEVENS: Well, there's no time limit in conference. Every Justice has the opportunity to speak as long as he or she wants to. It's unlike the arguments. 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 they think the lawyers have not made, or something like that. But then the first time they really discuss it in a deliberative way is during the conference. DAVID BARRON: And could you say why that is? I mean, why not a 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 it or is there a reason why you wait?

11 PAGE 11 JUSTICE JOHN PAUL STEVENS: That happens from time to time. On important cases, you might feel very strongly about it and 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 think out what position to take. So they generally are happy to wait until the conference itself before they share views. But I'm sure there are individual cases where there's a departure from that routine. DAVID BARRON: 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 of the case. 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 facts before you would let a law clerk see a draft of the opinion. JUSTICE JOHN PAUL STEVENS: That's normally true, yes. DAVID BARRON: Why is that? Why did you think that was such an important thing for you to take charge of? JUSTICE JOHN PAUL STEVENS: Well, again, there's a historical answer to it, that's what Wiley Rutledge did. He wrote everything out on a yellow pad in his own handwriting. Normally, his first draft would be what was printed later. There would often be a footnote, say something like, JPS get cites, or something like that, and we d have to draft footnotes or something. But he wrote them out himself and I thought that was a good practice. 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. He always thought it was quite important to have an opinion that demonstrated to the reader the issues had been thoroughly considered and rejected. So he tended to write long opinions.

12 PAGE 12 Anyway, that plus the fact that I'd had some experience in the Court of Appeals with Judge John Hastings, who always wrote out his opinions. I remember he told me shortly after I went on the Court of Appeals, If you write out the facts carefully and thoroughly, the case will usually decide itself. And it s true of this. When you're working with the facts, the facts can be really terribly important in the outcome of the case. DAVID BARRON: The point you just made about how important you thought it is for each lawyer before the Court, or each party before the Court, to have the views considered by the individual Justice just reminds me of something when I was clerking that you said that has always stayed with me. 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, a Justice on the Court, had a view of the case everyone was entitled to know that Justice s view and that was more important, perhaps, than the whole Ccourt being on the same page. Is that fair or am I getting it wrong? JUSTICE JOHN PAUL STEVENS: No, that's fair, plus there's another historical explanation for that that goes way, way back. Before I became a judge, I participated in some hearings involving an allegation of impropriety against members of the Illinois Supreme Court. I was 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 dissents. I remember thinking at that time, Well, the public is entitled to know that. And that stuck with me over the years and I came to the conclusion that if one dissents from a case, is dissenting from a case, that's part of the decisional process and the public really ought to know that. So I decided early one of the questions, seminars on newly appointed appellate judges consider, is when to dissent and when not to dissent. Because there's also the contrary view: Should the Court try and portray the law as a seamless web in which everything fits together when it really doesn t. So I just thought it s part of the obligation of a judge to tell his or her own views about a case even if they differ from the majority.

13 PAGE 13 DAVID BARRON: So we have 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 on an issue I know that you care deeply about, which is the Federalism issues and 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 four more liberal members of the Court to uphold the Healthcare Act. What was your reaction? Were you surprised by how it came out? JUSTICE JOHN PAUL STEVENS: 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 mentioned this the other day -- that my law clerk, Dina Mishra, who was with me the morning the cases were handed down, and I talked about the case, and it was the end of the term so we knew the case was going to come down that day. I happened to be in the courtroom -- I won't explain why -- and I said to her, I think that the government's going to win 5-4 and the reason is the Chief Justice is going to vote in favor of the government. The reason 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. It was my appraisal of John Roberts that persuaded me to make that prediction and I was right. DAVID BARRON: You certainly were. Now, another case, I guess, in which you and the Chief Justice disagreed was the Citizens United case. JUSTICE JOHN PAUL STEVENS: Right. DAVID BARRON: And you disagreed quite strongly with it. I don't know if everyone knows the history. When you first came onto the Court, the very first campaign finance, the big

14 PAGE 14 campaign finance case, was being decided by the Court that very year, which was Buckley v. Valeo. That s the case that sort of equated money with speech. You couldn t participate in the case. JUSTICE JOHN PAUL STEVENS: That's right. DAVID BARRON: At the time, so you just saw the drafts floating around. And you said the drafts were enough to give you a long-lasting distaste for this whole line of jurisprudence. Citizens United has obviously attracted an enormous amount of controversy in 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? JUSTICE JOHN PAUL STEVENS: Well, it took me 90 pages, was it, to explain my views in my dissent. I have not changed my views about the merits of the case or the issue generally. But I'm not sure that the basic error that goes through that case in that line of jurisprudence doesn t go all the way back to Buckley against Valeo, in which they held unconstitutional limitations on expenditures. I think that was the basic mistake that 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; 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 sides to speak. An example is oral arguments before the Supreme Court. We put limits on how much you can speak both in writing and orally. It seems to me that as long as the limits are reasonable and sufficient to permit adequate exposition of ideas, that the legislature should be able to limit the total amount of speech devoted in campaigns and elections. So it s not merely the fact that the corporate speech is encouraged by that, but the very basic point about whether there should be some limits on the total speech, and I think there should be.

15 PAGE 15 DAVID BARRON: Now, there's a part of my question that 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. One of them was on a book I think called Framed, about the need to change - JUSTICE JOHN PAUL STEVENS: Oh, the Irving Morrison book. DAVID BARRON: Yes, the need to change some of the constitutional provisions that are outdated or outmoded. It raised the issue of whether the Constitution we have now is good enough, or should there be improvements on it. In that connection, there 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? JUSTICE JOHN PAUL STEVENS: I'm not sure how that's connected to the review on Framed, but that's all right. Yes, I do. The public would benefit from an amendment that authorized legislatures to 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 the fact they're in office so they have to be reasonable. But you don t have to allow this tremendous money to spend on repetitive commercials over and over again, which are not really making arguments that are particularly persuasive. But I do think a constitutional amendment would be desirable. DAVID BARRON: 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 is 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 v. Hardwick. But that case began to crumble a bit in a case called Romer v. 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 the opinion when the

16 PAGE 16 Chief Justice was not in the majority. You chose to give that opinion to Justice Kennedy, who wrote the opinion on Romer and then went on to write the opinion relying on Romer that overruled Bowers v. Hardwick, which is the Lawrence case. How d you decide to choose Justice Kennedy for that decision? JUSTICE JOHN PAUL STEVENS: I really can't remember with any particularity. 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, that's about all I can say about that. DAVID BARRON: Now, a case like this, as momentous a case as the gay marriages case 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 v. 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 controversy is going on, you're watching on television, they're counting the chads. JUSTICE JOHN PAUL STEVENS: I can interrupt you there and say Justice Scalia saw it coming. He mentioned it in several of meetings, and at the time he mentioned it, I thought, That's not before us now, and not apt to be before us for a long time. So I did not see it coming. DAVID BARRON: Then you were at a Christmas party, I guess, the night before with Justice Breyer where there was some - JUSTICE JOHN PAUL STEVENS: Oh, I thought you were talking about the gay rights. DAVID BARRON: No, the Bush v. Gore. JUSTICE JOHN PAUL STEVENS: Oh, I'm sorry. What was the question again?

17 PAGE 17 DAVID BARRON: In Bush v. Gore, 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 JUSTICE JOHN PAUL STEVENS: Well, there was an application for a stay that was followed and the Court had to act on the application for a stay. I saw Stephen at the Christmas party at the Mellon Art Gallery -- they had a party 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 the Chief had even called a conference for the next day. So I was surprised at the Chief s decision to ask for a conference the next day. I was even more surprised at the results of the conference. But I'm not sure I DAVID BARRON: You got it. Right, that's what I was asking, yes. In the wake of that case, there was a lot of concern -- as you expressed 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 at least questioned whether it was wise for the Court to have gotten involved in that case. JUSTICE JOHN PAUL STEVENS: Well, let me just correct one slight difference between the way you phrased 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 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. I really think that I had it in mind what I consider the improper impression that that decision created about the rule of law generally, which included the actions of the Florida Court, as well as our own Court. It s very important to me to remember that it wasn t just our Court, but the Florida Court. I thought, at the time, that this was a decision, given the fact that they were essentially passing on what the Florida statutes meant, and so forth, in which we should have shown more deference to the State Supreme Court.

18 PAGE 18 DAVID BARRON: 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? JUSTICE JOHN PAUL STEVENS: Do they ever write decisions? DAVID BARRON: Do law clerks ever write the decisions? JUSTICE JOHN PAUL STEVENS: Yes. [laughter] Not in my chambers, but they do. DAVID BARRON: You've heard of the practice elsewhere? JUSTICE JOHN PAUL STEVENS: Yes. DAVID BARRON: Okay, here's a question which I bet you will dispute the premise of, and it concerns affirmative action. The question is why has your stance on affirmative action changed over your years on the court? JUSTICE JOHN PAUL STEVENS: Well, that really is a complicated question. It s not so much 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 diversity in the classroom is terribly important. The same considerations do not necessarily apply to whether there must be diversity on a gang of workers working on a highway or something like that. They're different problems, they overlap. And I have changed to some extent, but not as much as the question implies. DAVID BARRON: How would you characterize the change in your thinking on that issue?

19 PAGE 19 JUSTICE JOHN PAUL STEVENS: 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 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 instead of having an all-white faculty, and it seemed perfectly obvious that it would. But the court nevertheless felt otherwise, yes. DAVID BARRON: 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 a governor of California. As a consequence, the person writing the question asks this: Some have argued recently that a politician would serve the Court well as a member. You note in your book that, at present, everyone I think, save 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 JUSTICE JOHN PAUL STEVENS: Yes, I do. I think it s healthy to have diversity in a number of different areas, and I do think there are all sorts of qualifications for a Supreme Court position that do not necessarily require experience on an appellate court. DAVID BARRON: Justice O Connor, she had some legislative experience, I guess, when she was JUSTICE JOHN PAUL STEVENS: Correct and she d also been a judge. DAVID BARRON: She had been a judge, that's true. Okay, so this is an interesting question. Do you think nine is the right number? [laughter] JUSTICE JOHN PAUL STEVENS: Yes. [laughter] DAVID BARRON: And why?

20 PAGE 20 JUSTICE JOHN PAUL STEVENS: Well, you need an odd 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 and things that work okay for a long time probably should be preserved. DAVID BARRON: Okay. What, outside of your legal training, do you think most prepared you for the Supreme Court and the cases that it has faced? JUSTICE JOHN PAUL STEVENS: 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 and another was a good basketball player, oddly enough. But the practice of the law is a wonderful educational experience. One learns of much, much more than you realize if you have a general practice. Now, if you specialize in some narrow specialty, I suppose that's probably not true. But the law practice is very interesting and a good profession. DAVID BARRON: 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 exemption in baseball. JUSTICE JOHN PAUL STEVENS: To the House of Representatives. DAVID BARRON: To the House of Representatives. Okay, you were counsel to the House on whether baseball should get an antitrust exemption. And in that connection, you had the occasion to cross examine Ty Cobb. JUSTICE JOHN PAUL STEVENS: Well, that s true. Actually, there wasn't much to the cross examination. But I remember the interview much better than the pre-trial. But you might be interested, going back to those hearings, particularly because Jackie Robinson is such an important person in the current thinking about integration in baseball. I also had a chance to interview Branch Rickey.

21 PAGE 21 DAVID BARRON: Oh, you did? JUSTICE JOHN PAUL STEVENS: And the most important thing I still remember of my interview with Mr. Rickey was he said something like, Do you know what is really required to have a successful athletic team? I said, No. He said, Keep them hungry so they ll have an ambition to make more money. And I often think about that when I think about what athletes make today. I don't know whether he was right or they're right or what. But the world is certainly different in the athletic field than it is now. I don't know if that's true of the Boston Red Sox or not. [laughter] DAVID BARRON: They're doing better this year, you'll be glad to know. 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 did you come to that decision? What goes through your mind in making that judgment? JUSTICE JOHN PAUL STEVENS: Well, there were two factors. One, I had an understanding with my good friend, David Souter, before when he was on the Court, that he would tip me off if he became convinced that I'd started to lose my marbles. [laughter] And he agreed, but then two years before I started to lose my marbles, he retired. So I didn t DAVID BARRON: You lost your marbles. JUSTICE JOHN PAUL STEVENS: I lost my protector, so that was one major factor in the decision. The second, in all honesty, is in my dissent, when I dissented in the Citizens United case, I had a little trouble articulating my oral dissent. I stumbled two or three times in my statement that seemed to me this is not characteristic. Maybe you should think twice about trying to continue on the job.

22 PAGE 22 DAVID BARRON: 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 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? JUSTICE JOHN PAUL STEVENS: Well, you might be interested 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 not merely working on written opinions. So I remember Potter telling me that and it s been true. Every term that I've been on the Courts, at least one dissent has been announced orally. I remember -- I think I mentioned this in the book -- this first or second year when Nino Scalia was on the court, at one of our parties at the end of the term -- we had a party with the law clerks and so forth -- Byron White and I were talking about that very issue and said we haven't had an oral dissent yet. And Nino came up, he 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 about executive? DAVID BARRON: Morrison? JUSTICE JOHN PAUL STEVENS: Yes, Morrison against Olson. So he did. He went ahead an announced his dissent, and he preserved the tradition then. I'm not sure he still remembers that Byron and I suggested that he do it because that dissent took on a life of its own and helped establish his reputation as a fine Justice. DAVID BARRON: So Justice, we have time for one more question? One more, okay. We ll see if you answer this. If you don t, I'll ask a different one. You've worked with these members

23 PAGE 23 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? JUSTICE JOHN PAUL STEVENS: Well, I'll tell you both what I think they should do and what they ll probably do. I think the attack on the constitutionality of the Defense Act was a very persuasive case because the impact of the tax laws 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 on the part of the people who are defending the California proposition. My judgment would be they will dismiss that petition as having been improper, improvidently granted. I thought they would do it the week after argument, but I'm dead wrong there so I may well be wrong here. But my guess, if I had to make a guess, they will dig that case and they ll hold the federal statute invalid. DAVID BARRON: 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. JUSTICE JOHN PAUL STEVENS: Thank you. [applause] Thank you. DAVID BARRON: So we thank you all for coming. We ask you to stay in your seats until Justice Stevens has exited the room. Thank you, please remain in your seats. I'll dismiss you in a moment. THE END

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