Justice John Paul Stevens on How the Supreme Court Works

Justice Stevens discusses affirmative action, Citizens United, and his favorite chief justice

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The third branch of government is charged with interpreting the U.S. Constitution and has had great influence in shaping American society. Still, the public has limited knowledge of the inner workings of the Supreme Court. John Paul Stevens, who was nominated to the high court by President Gerald Ford and recently retired after 35 years as a justice, has written a book that he hopes will shed some light on the decision-making process and the people behind it. In Five Chiefs: A Supreme Court Memoir, Stevens gives candid views of the five chief justices he has worked with, as well as his take on some of the most significant cases in U.S. history. Stevens recently spoke with U.S. News about changing his position on the death penalty, how Bush v. Gore tainted the high court's reputation, and why his favorite chief justice is John Roberts. Excerpts:

Why did you write this book?

Well, I thought that I've had an interesting experience with different chief justices that I thought people in the public might enjoy knowing a little bit about.

Are there common misconceptions about the court?

Well, maybe not exactly misconceptions, but sort of an incomplete understanding of how the work goes on and what's part of the regular routine of the court.

[See a slide show of the members of the Supreme Court.]

Is it really possible to be impartial and unbiased?

I hope so. You have to count on the integrity and good faith of the justices to do that. And I think we have a wonderful record of trying to decide things on the merits rather than on the basis of our own particular views.

What about activist judges?

Well, yes, over the years there had been a number of judges who have gone farther in deciding a case than they needed to in order to resolve the controversy between the parties.

Can you give an example?

I think I discuss the Citizens United case [which determined that political spending by corporations is a form of protected speech and was not to be limited by Congress]. That was an example of the justices going farther than they had to and in doing so changing the law rather dramatically.

[Read the U.S. News debate: Are Super PACs Harming U.S. Politics?]

How did the Bush v. Gore decision affect the court?

I think that it had an adverse impact on the public's regard for the independence of the court. Over the years, the court has survived that unfortunate mistake and still has a high standing. But I do think that it suffered a rather serious temporary setback as a result of that case.

Can the chief justice influence the court's decisions?

One of the points I make in my book is that the chief justice is only one vote. And there is a perception that he has more power to influence decisions than any other member of the court. And that's generally quite inaccurate because each of the justices has the same power and opportunity to persuade the others.

Who was your favorite chief justice?

Well, among the five that I wrote about, the current chief justice, John Roberts, I think scores the highest. He's a delightful person, a very intelligent person, and a very fair leader both in open court and in conferences among the justices.

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Have you changed your view on affirmative action?

I had to make decisions in different contexts. And in some of the early affirmative action cases, Congress had passed a statute that was very poorly considered. In early cases, the courts seemed to think of affirmative action merely as a remedy for past wrongdoing.

What should they have done instead?

Looked at the benefit that affirmative action could produce for the future.

Is there a decision that you lose sleep over?

The [1976] case in which I voted to uphold the Texas death penalty. I think I made a mistake in my analysis in that case, and I would decide that otherwise.

Is it time for the court to declare the death penalty unconstitutional?

[Read: Is Capital Punishment on Death Row?]

I wouldn't expect that to be done. But after many years of study, I did come to the conclusion myself that if I had the power to decide that it was unconstitutional, I would do so. Further attention to the death penalty is educating the public somewhat more and maybe the democratic process will result in its abolition in a number of states.