If Supreme Court Justice John Paul Stevens was facing a criminal trial he would want his colleague, Justice David Souter, to preside, he said in the closing session of the 9th Circuit's judicial conference in Honolulu last week.
Stevens was quick to interject that he wouldn't worry about any of the other justices presiding. The lively and often humorous account of his years on the Court provided some insights into the last session's rulings as well as other justices on the Court.
Souter, who rarely makes public speeches or appears on television, has a right to remain a mystery, said Stevens. "We say a lot in our opinions -- more than most of you are willing to read," he said.
Other justices, who regularly give speeches, sometimes don't like to have them televised because they are "canned" and repeated, something Stevens says he does not do. At the suggestion by Chief Judge Robert Lasnik of the Western District of Washington in Seattle, that Justice Antonin Scalia might be happy to loan Stevens one of his speeches, Stevens replied, "Yes, but at the end I would have to say, 'I dissent.'"
At 87, Stevens is the longest-serving justice on the Court, appointed in December 1975 by President Gerald Ford. Asked if he has someone who will tell him if his abilities falter and he has served too long, Stevens quipped, "Yes. And he is apt to do it when I dissent from one of his decisions."
The 9th Circuit's dubious record of a 90 percent reversal rate last session, reversing 19 of 21 cases, is "misleading" and does not reflect where it really stands, Stevens said. He pointed out in the Seattle schools case, Parents United v. Seattle School District, 127 S.Ct. 2738, that the 6th and 1st Circuits had ruled similarly and that three appeals courts ruled the same on so-called partial birth abortion cases, which were later overturned. The Seattle schools case, by 5-4 vote, held the city could not use race as a factor in making school assignments.
While some judges may think issuing unpublished decisions means they get less attention, Stevens said he pays more attention to them. "If there is a dissent surely it should not be unpublished," he said.
As for concerns that the U.S. Supreme Court may be singling out the 9th Circuit for special attention, "Not in my chambers," he said. He could not be as certain whether other justices keep a closer watch on what the 9th Circuit produces.
Stevens also suggested that with just 73 opinions issued last session, the Court may be "taking fewer cases than we should. But if the rate was at a level of 150 cases a year, as it was in the past, I would have left the Court long ago," the workload was overwhelming.
He said he does not think his judicial philosophy has changed over the years, and that he has looked at some of his old opinions from days on the 7th Circuit and found them consistent with his writings today.
