Sandra Day O'Connor Interviews John Paul Stevens

Article excerpt

They've left the bench, but they still have opinions. Two former justices talk about how they've evolved--and how they feel about being overruled by a changing court.

O'Connor: Do you think that over the years you were here, your approach to cases changed at all? Or your view of the law? Did you see changes in your own reaction to the law in the cases we heard?

Stevens: Well, yes, because it is a learning experience. I think nobody knows all the answers when he or she joins the court. You gradually learn about different areas of the law. And you learn through the briefs and arguments of your associates. So it's a continuing learning experience. It's a lot of fun?.?.?.?one of the most interesting things anyone can do.

O'Connor: I feel the same way about it. Much is done at the time a new justice is nominated to try to see what the justice is going to do. But in fact, is it your experience that the nominee himself or herself doesn't know what they're going to do?

Stevens: Absolutely, absolutely.

O'Connor: The nominee hasn't addressed all those issues.

Stevens: You haven't read the briefs. All sorts of questions may come out differently after you study [them]. No, I think it is a terrible mistake in the confirmations to expect the nominee to know all the answers, because you just don't know them at the time.

O'Connor: During your years on the court, according to the press, some thought that you drifted "to the left," whatever that means. Have you read that about your jurisprudence?

Stevens: I've read that over and over again, and the only thing I would say about that is, I've been asked this a lot and thought about it a lot, and, with one exception, I'm not aware of any case that I voted on as a justice that I would decide differently today.

O'Connor: What was that one about?

Stevens: That was the Texas death-penalty case. My first year on the court we decided five death-penalty cases, and we held unconstitutional the mandatory death sentences in two states and upheld the nonmandatory statutes in two other states. And I think upon reflection, we should have held the Texas statute--which was challenged in the fifth case--to fit under the mandatory category and be unconstitutional. In my judgment we made a mistake on that case.

O'Connor: I suppose the court has had occasion to change its view on certain issues over a period of years. Do you see any on the horizon that you think the court might well reexamine as things go on?

Stevens: Well, you know, Sandra, I dissented in a lot of cases, and I'd like [the court] to reexamine them all [laughs]. I don't expect them to, but I think they made a serious mistake in the [Citizens United] campaign-finance case, in which they overruled the portion of an opinion you and I jointly authored [on the McCain-Feingold campaign-finance law]. And I think you might share my view. …