At 89, Stevens Contemplates Law, and How to Leave It

At 89, Stevens Contemplates Law, and How to Leave It
By ADAM LIPTAK
Copyright by Reuters
Published: April 3, 2010
http://www.nytimes.com/2010/04/04/us/04stevens.html?th&emc=th


WASHINGTON — “There are still pros and cons to be considered,” Justice John Paul Stevens said in his Supreme Court chambers on Friday afternoon, reflecting on his reluctance to leave a job he loves after almost 35 years. But his calculus seemed to be weighted toward departure, and he said his decision on the matter would come very soon.

“I do have to fish or cut bait, just for my own personal peace of mind and also in fairness to the process,” he said. “The president and the Senate need plenty of time to fill a vacancy.”

Hints about Justice Stevens’s possible departure started in September, when he confirmed that he had hired only a single law clerk, instead of the usual four, for the term that will start this fall. In occasional public statements since then, Justice Stevens, the leader of the court’s liberal wing, said he had not yet made up his mind. But the White House is bracing for a summertime confirmation battle, the second of the Obama presidency.

Justice Stevens, who will turn 90 this month, said he did not like to give interviews “because it saves an awful lot of time if you don’t.” But he was courtly and candid in reviewing the trajectory of his tenure on the court and in summing up what he had learned about the role of the judge in American life.

Like last year’s selection of Justice Sonia Sotomayor to replace the retiring Justice David H. Souter, this change would be unlikely to remake the court’s ideological balance. But the matter would in some ways have more resonance, if only because of Justice Stevens’s seniority and mastery of the court’s machinery.

Appointed in 1975 by President Gerald R. Ford, Justice Stevens was in those days considered a somewhat idiosyncratic moderate. These days, he is lionized by the left. But Justice Stevens rejected those labels on Friday, saying that his judicial philosophy was a conservative one.

“What really for me marks a conservative judge is one who doesn’t decide more than he has to in order to do his own job,” he said, relaxed in shirt sleeves and his signature bow tie in chambers floodlit by April sunshine. “Our job is to decide cases and resolve controversies. It’s not to write broad rules that may answer society’s questions at large.”

He is known for his fast and prolific writing, and for relying less on his law clerks than some other justices do.

“I write the first draft,” he said. “One of the tests I had for myself as to when I would retire was that if I ever got to the point that I stopped writing the first draft that would be a sign that I was no longer up to the job the way I think it should be done.”

That day, he said, has not yet come. “Everything that’s got my name on it, I wrote the first draft,” Justice Stevens said.

But he did acknowledge that he had a bad morning in January when he dissented from the bench in Citizens United, the blockbuster decision that said corporations may spend freely to support political candidates. He seemed weary and tripped over ordinary words.

“I did stumble in my oral statement,” he said. “I had been up early that morning writing that statement out, and I had played tennis that morning. Maybe I was tired, and of course I felt strongly about it, but that has never affected my ability to articulate orally what I wanted to say before. It was a novel experience.”

Should Justice Stevens step down, the court will lose its last member who served in World War II and is steeped in the values of that era.

“It really was a unique period of time, in the sense that the total country, with very few exceptions, was really united,” Justice Stevens said. “We were all on the same team, wanting the same result. You don’t like to think of war as having anything good about it, but it is something that was a positive experience.”

He was unapologetic in saying that the justices’ backgrounds necessarily shaped their approaches to the law.

“I’ve confessed to many people that I think my personal experience has had an impact on what I’ve done,” he said. “Time and time again, not only for myself but for other people on the court, during discussions of cases you bring up experiences that you are familiar with.”

He said his military service, as a Navy cryptographer, informed his dissent in Texas v. Johnson, a 1989 decision that said the First Amendment protects flag burning. “I know it’s not the popular position, but I’m still totally convinced I was right,” he said. “I still think I was right, but I wouldn’t amend the Constitution or anything like that to straighten it out.”

His views have generally remained stable, he said, while the court has drifted to the right over time. “To the extent I look back at earlier situations,” he said, “I really don’t think I’ve changed all that much.”

Often, he added, the law requires a certain result, as in the court’s 2005 decision in Kelo v. City of New London, which allowed local governments to use the power of eminent domain to take private property for business development.

“The Kelo case was one of my most unpopular opinions, and that was one where I thought the law really was pretty well settled on the particular point,” he said.

Asked if he would have answered the question presented in the case differently had he instead been a legislator, Justice Stevens said probably yes.

“One of the nice things about this job is that you don’t have to make those decisions,” he added. “Very often you think, in this particular spot I don’t have to be deciding the really hard case about what should be done. Which is one of the reasons why the function is really quite different from what people often assume.”

In the area of capital punishment, though, he said his views had shifted.

“I certainly would not have expected during my first years on the court to have written an opinion like I did in Baze,” he said, referring to Baze v. Rees, the 2008 decision that rejected a challenge to lethal injections. Though Justice Stevens voted with the majority, he wrote that he had come to the conclusion that the death penalty violates the Eighth Amendment. He went on to say that his conclusion did not justify “a refusal to respect precedents that remain a part of our law.”

He explained Friday why he did not follow the approach of Justices William J. Brennan Jr. and Thurgood Marshall, who adopted a practice of dissenting in every death penalty case.

“I’m still a member of the court, and I still have to work,” Justice Stevens said. “I never really agreed with Justice Brennan and Justice Marshall that your own personal view on the issue should prevent you from participating. You’re still a member of the team, and the team has to confront the problem.”

But that did not mean Justice Stevens, who in 1976 voted to reinstate the death penalty, was satisfied with the court’s capital jurisprudence.

“There are a number of death cases that troubled me,” he said. The Baze opinion, he added, “was really my reaction to the developing jurisprudence, which I think moved in a direction that I didn’t expect and is not correct.”

When the talk turned to balancing the pros and cons of moving on, Justice Stevens said the fact that he was still hard at work spoke volumes.

“It’s a wonderful job,” he said. “That’s perhaps the best evidence of it. I wouldn’t have hung around so long if I didn’t like the job and if I didn’t think I was able to continue to do it.”

On the con side, he said he was starting to feel his age. “I have to notice that I get arthritis in my left knee now and then,” he said. “That wasn’t bothering me before. I’m conscious of changes.”

Those changes have even shown up on the tennis court, he said with no little chagrin. “The game isn’t quite as good as it used to be, I have to confess,” he said.