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The National Law Journal‘s Marcia Coyle sat down with retired Justice John Paul Stevens to discuss his new book "Five Chiefs: A Supreme Court Memoir." Stevens discusses his decision to write the book, his distaste for campaign finance debates and his views on the Roberts Court.

How did the idea for "Five Chiefs" evolve?

It was a combination of things. I really thought there was a general misunderstanding about the office of the chief [justice]. Some people thought he runs the whole Court. On other hand, there are people who don’t realize he has a lot of other responsibilities specific to his office. It occurred to me it might be useful to talk about some of those things, although they may not be the most popular part of the book.

Second — and this may be the proximate cause of the whole thing — after I retired, I had a number of invitations to talk to local groups — Rotary and different small groups. Usually what I would do after being introduced, I would invite questions and try to respond to questions being asked. And on almost every occasion, somebody would bring up the fact that I had served with three justices and ask me to comment on the differences. That made me think, "by golly, I actually had contact with five chief justices and it might be of interest to have something based on my recollections of each of them."

Was any chapter particularly difficult for you to write?

The chapter, which frankly the publisher suggested, about the first 12 chiefs. It wasn’t hard, but trying to say enough to make the reader understand enough about each and not get distracted from my main mission was challenging. That was sort of an added chore after most of it had been written.

Did you learn anything in your research that surprised you?

One of the things I learned writing opinions generally, is whenever you start to write something you learn something. Earl Warren was a recess appointment. Actually he didn’t do anything significant during that period other than participate in the decision to have further argument in the Brown (v. Board of Education) case. I really think that practice (recess appointments of justices) is quite wrong. It’s an interesting detail I think we should think about. Both Brennan and Stewart were recess appointments. If you were a recess appointee, considering how interested Congress is in the Court’s work, think how your decisions could well be affected by how you think they might react with the Senate committee.

Many Court observers believe that you did not participate in the Court’s cert pool because you did not want to miss anything important by relying on clerks. But you suggest in your book that the real reason is you believe you are more efficient than the cert pool.

That is absolutely correct and that remains the main reason. There have been over the years different thoughts about how the process might be changed. I remember before I went on the Court, when I was on the court of appeals, I wrote a long letter to Warren Burger about dividing up cert petitions in two stacks and have one set of justices do one stack and the other do the other. And, of course, anyone would have the opportunity to look at those in the other stack. I was thinking of ways to shorten the process. I thought one of my defenses was you really don’t have to be concerned about missing important cases because if it’s really important, it’s going to recur more than once, plus the fact it’s really unlikely that if it is an important case that everyone won’t recognize it right away. So that was never a concern of mine.

What did you try to accomplish in the chapter on Warren Burger?

I really think the jurisprudence during his chief justice-ship has been underestimated in its importance. In particular, U.S. v. Nixon was incredibly important and perhaps one of the most important cases the Court ever decided, and people tend to gloss over it. I think perhaps some of the press and some of the other commentators have felt maybe Warren Burger wasn’t responsible for it because others participated in drafting the opinion. It was his opinion. He was the chief justice. It was his Court. And some of the other opinions I mentioned, people tended to underestimate the work that was done under his leadership, partly because there was the feeling he might have been kind of pompous and petty in certain respects and more interested in being chief justice of the United States than in running this particular court.

How did you develop what you call your "distaste" for campaign finance debates in the Court?

It’s just the accident of timing. I became a justice in December and my first arguments were in January. During that period, the Court was trying to decide on an expedited basis Buckley v. Valeo. That was a case which presented multiple election law issues. Although I was not a participant, I received copies of all the circulations, and I felt I really ought to know what the deliberations were in the case. So I read everything (laughing). It seemed to me I spent a huge percentage of my time reading opinions that really should not have been required reading, but I thought were important to read. And I developed a distaste for the general subject matter because it seemed to interrupt my attempts to do the best job I could with the stuff I was qualified to participate in. For the most part, they were pretty long opinions, too. Then you have to participate in the commentary when one criticized the circulations in order to follow the whole thing.

And they’re still long opinions, including your 90-page dissent in Citizens United.

I’m embarrassed (laughing). Citizens United is probably three times as long as it should have been, but there were so many things I wanted to say.

In the Rehnquist chapter, you note the significance of the change in the Court’s jurisprudence resulting from Clarence Thomas’ replacement of Thurgood Marshall. Was the significance in Thomas’ votes or his jurisprudence?

He’s written a number of scholarly and thoughtful opinions. But I don’t think they’ve had much impact on his colleagues’ votes.

How would you explain to an ordinary person why the Rehnquist Court’s sovereign immunity decisions are so important and, in your view, so wrong?

One thing the courts are supposed to do is administer justice. And basically the ancient doctrine of sovereign immunity is the right of the king to act unjustly. I think it pervades, in a totally indefensible way, a number of the Court’s cases. The notion that the common law rule of sovereign immunity should be of constitutional status is one of the most unjustified parts of the Court’s jurisprudence. I think it’s just so outrageously wrong that attention should be given to it. It’s a doctrine of injustice. I think it should not survive. In time, it just seems to me reason should prevail. I’m optimistic, but the Court has made recently some really incorrect decisions.

There are many observers who believe Justice Samuel Alito Jr.’s replacement for Justice Sandra Day O’Connor resulted in a very significant change in the Court’s jurisprudence, but you do not mention that in the chapter on Chief Justice Roberts. Why?

Although it seemed dramatic in the few cases that clearly would have come out the other way, I think it’s too early to be judging Justice Alito. I think he may surprise many people over the years. He is a fine lawyer and a fine scholar and a fine person. I would hesitate to write anything that would prejudge how he might turn out.

Is it too early to characterize the Roberts Court?

I think it is. There are other decisions I could have talked about more in the Roberts chapter. There’s a lot I could have said about Citizens United and lots I could have said about the Second Amendment case. I deliberately thought I should not in the book merely rewrite what I had written perhaps in excessive length in opinions. I intend to do some more writing as time goes on and I may have more to say about those areas.

Was any term in your tenure especially difficult for you, for whatever reason?

No, although (laughing) the last two or three when they went so far off base on the Second Amendment and campaign finance — those are difficult decisions to accept.

You write in the final chapter that the Court is a place where you and your colleagues "not only could, but regularly did, disagree without being disagreeable." Other justices also have commented that they have never heard an angry word in conference. What makes this such a collegial court versus the court known as nine scorpions in a bottle?

My one personal recollection having been a law clerk during the period of that Court, is I didn’t witness, but sensed there was some real deep antagonism. Frankfurter thought basically Black and Douglas were unscrupulous and really not faithful to the law. I remember some years ago when I was still a practicing lawyer, Thurgood gave a talk to a 7th Circuit conference and was asked whether that kind of animosity persisted, and he said, " No, everybody gets along fine." I remember thinking to myself, "well that’s the party line. He’s being decent and loyal." One of the questions I had when I joined the Court was: Am I going to find out Thurgood was just pretending? And I found out everybody did get along really well. It is personalities, and I do think the little things I mentioned in the book — having wine and singing during birthdays, having the coffee break during the conference, and two or three other little things have contributed to it.

So what will be your next book?

I’ve got a lot of ideas but I’m not really sure. I’ll kind of work it out as I go along. I’ve enjoyed the project and when I get down to Florida, I may think it through.

Marcia Coyle can be contacted at [email protected].

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