FORT LAUDERDALE, Fla. – John Paul Stevens spent more than a third of his near-century on Earth at the Supreme Court, where he often was on a different page from a majority of his fellow justices.
“It happens so often that you have to get used to losing,” Stevens, 99, said during an interview this last week at his condominium here, just steps from the Atlantic Ocean. “My batting average was probably pretty low.”
But one particular loss lingers and, Stevens says, brings grim reminders almost weekly: the court’s 2008 decision in District of Columbia v. Heller, which found the Second Amendment protects a right to individual gun ownership unrelated to possible military service.
“Unquestionably the most clearly incorrect decision that the Court announced during my tenure on the bench,” Stevens writes in his new memoir, “The Making of a Justice.”
Heller and the Second Amendment, Stevens said in the interview, produce “such disastrous practical effects. I think there’s no need for all the guns we have in the country and if I could get rid of one thing it would be to get rid of that whole gun climate.”
He continued: “Just the other day there was another school shooting in Colorado, and every time it happens, it seems to me we don’t have to have this kind of thing in this country, and we should do everything we can to try to change it.”
Stevens writes of his efforts to try to make the 5-to-4 decision come out the other way.
His 531-page book, to be published Tuesday, details the life and career of a World War II Navy code-breaker from a solidly Republican family, nominated to the federal bench by one GOP president (Richard Nixon) and elevated to the Supreme Court by another (Gerald Ford) who retired in 2010 as the court’s most outspoken liberal – though Stevens believes the court changed more than he did.
In the interview, he expressed generalized distress at the state of the world and the nation’s politics. “You wake up in the morning and you wonder what’s happened,” he said. Still, he retains a judge’s reticence even years after leaving the bench: “But I shouldn’t say more.”
He does wonder why it is so challenging for his former colleagues to recognize that partisan gerrymandering is a constitutional violation, as they do with racial gerrymandering. “It’s the same issue,” he said. “Public officials, including state legislators, have a duty to act impartially. The whole point (of partisan gerrymandering) is to create an unfair result.”
And he expressed surprise about Chief Justice John Roberts, whom he respects and admires. “I must confess he’s more conservative than I realized,” Stevens said. “But that doesn’t go to his quality as a chief justice.”
During the interview, Stevens was preparing for a reunion of his clerks – more than 90 of 125 were expected to attend. He must steady himself with a walker, but remains active. Tennis has been replaced by ping-pong, he said, but he still plays nine holes of golf each week.
“I don’t go in the ocean as much as I used to, and that’s really my favorite activity down here,” he said. “A strong guy” to help him in and out of the surf is now “an absolute necessity,” he said.
It is hard to imagine that at his 1975 confirmation hearing, soon after he became one of the first to receive a heart-bypass operation, the main obstacle was “did I have a sufficient life expectancy to justice the important appointment,” he writes. He was approved unanimously.
The memoir is a tale of a privileged childhood in Chicago, the ravages of the Great Depression and a family scandal, service as a wartime cryptologist and a charmed legal career as a Supreme Court clerk, appeals court judge and the third-longest-serving justice in the court’s history.
Stevens was in the stands at Wrigley Field in Chicago when Babe Ruth called his shot in the 1932 World Series – “my most important claim to fame,” he writes – and in the audience at the Democratic National Convention that summer when Franklin D. Roosevelt explained the New Deal on his way to becoming president. His father, Ernest, who took Stevens to the speech, was a Warren Harding Republican, however.
Amelia Earhart told him he was out too late for a school night when she attended the grand opening of the Stevens Hotel in Chicago, at the time the largest in the world. Charles Lindbergh passed along a caged dove someone had given him. On a trip to the South, Stevens and his family attended “Gone With The Wind” the week it opened in Atlanta.
The invitations that come to a Supreme Court justice provide other celebrity tidbits. He was as smitten as others when he met Princess Diana, and an encounter with the composer and conductor Leonard Bernstein provides a surprisingly bawdy anecdote from the mannerly Stevens, who often presided his questions on the bench with a courtly, “May I just ask… ?”
It was during a dinner at the French Embassy in Washington when Stevens and his wife, Maryan, were seated with Bernstein, who had just conducted the Orchestre National de France at the Kennedy Center. Maryan wondered about the emotions that accompany performing a masterpiece.
“It’s like (making love) in a cathedral,” Bernstein replied, according to Stevens in the memoir. The justice dutifully used a bawdy word to authenticate his reporting.
“The Making of a Justice” is Stevens’ third book since leaving the court; the others chronicle the chief justices with whom he served, and how he would remake the Constitution. He said he is unsure if there is a lesson in it for readers. “I didn’t have a specific mission in mind, I just started to write,” he said.
One lesson from childhood that informed his career, though, involved his father. The Depression hit after the Stevens Hotel opened, and the place faltered. The hotel borrowed money from an insurance company controlled by Stevens’ grandfather, an act that a Cook County prosecutor viewed as embezzlement. Ernest Stevens was found guilty, only to have his conviction overturned by the Illinois Supreme Court, which found not a “scintilla” of evidence of criminal intent.
“Firsthand knowledge of the criminal justice’s fallibility” made Stevens skeptical for the rest of his career, he said. “The system is not perfect – it’s pretty good, but it’s not perfect.”
Stevens was part of majorities that handed important victories to gays, limited the death penalty and mostly held the line on abortion.
On the latter, he said he is puzzled by “more and more state legislatures” passing restrictive laws in hopes of getting the Supreme Court to revisit the court’s rulings.
“I thought that was an issue that had been resolved,” he said. “I have no idea what the present court will do.”
In the book, he detailed his efforts to derail the Heller majority. He adopted Justice Antonin Scalia’s originalist approach to show, in his opinion, that historical texts supported the view that the Second Amendment was aimed at preventing federal disarmament of state militias, rather than forbidding efforts at gun control.
He wrote that he circulated his dissent five weeks before Scalia’s majority opinion, in hopes of persuading Justice Anthony Kennedy and – somewhat surprisingly – Justice Clarence Thomas.
“I think he’s an intellectually honest person, and I just thought there was a chance he might be persuaded” on the historical arguments, Stevens said of Thomas. “I guess I was kind of dreaming a little bit.”
But Stevens said the effort did succeed in getting Kennedy to insist Scalia include limiting language that states and cities have used to defend their gun-control measures.
In the book, Stevens refers to U.S. v. Nixon, in which the court said the president must turn over White House tapes to congressional investigators, as “the high point for judicial independence.”
He wrote the court’s unanimous decision in Clinton v. Jones, saying that a sitting president does not have immunity from all civil lawsuits for actions when he was not in office.
Both were unanimous and “easy decisions,” Stevens said, but he declined to be drawn into the current battle between congressional investigators and President Donald Trump.
He is asked: Nothing to say about the president? “Nothing that you don’t know already,” he said.
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