Transcripts For CSPAN2 Former Justice John Paul Stevens 20240714

Of ilr. Youve encountered several of the Board Members when youre checking in today and making your way into this room. I want to acknowledge carol who is where . Where are you, carol . Doing a lot of heavy lifting associate with this. [applause] a couple of business items i have to address. Photographs, recordings not permitted. Weve already turned off the cell phones, okay. Some business about ilr. Were beginning our full session on monday the 15th, less than two weeks, about ten days. We have an open house scheduled for next week, the tenth, at 1 00 at the Boca Raton Community center, which is right near the city hall near palmetto. Youre the Program Brochure on your seats when you came in that shows you are full program for the eightweek session, which i think looks very exciting. And those of you who are new to ilr, theres signup sheets in there as well which you can turn in when were done. Well, to business at hand. Were privileged of course today to have with us retired Supreme Court Justice John Paul stevens. [applause] and he hasnt even said anything yet. [laughing] the origins of this event are traceable to a member of our board and the former judge in philadelphia. She sitting right down here in the front row. [applause] not incidentally, paula plays bridge with Justice Stevens. And thats the basis whereby he comes to be here today. So thank you, thank you, paula. The conversation today will be moderated by Frank Cerabino who was a familiar figure to many of you. [applause] just quickly, a little background. Frank started out long island and graduated from the u. S. Naval academy. Served in the navy, completed his degree at Northwestern University and begin work in chicago and eventually came to south florida, join miami herald for several years and then he moved to the Palm Beach Post where his been writing and local news, for it says 26 years. He also lectures at fsu and probably does other things i dont even know about. Anyway. [laughing] while Justice Stevens will have to leave immediately afterward and well have two please, ill ask you to please give him some easy access of the aisle, frank has agreed to stick around if there is audience interest in doing that. No further delays. Frank cerabino. [applause] can you hear in the back . We might need a microphone to pass, just thinking because the sound are you okay . All right. See, i think well need a mic. [inaudible] okay. [inaudible] okay. My vast expanse with south florida audience is they can never be too loud. [laughing] will do the best we can. Listen, i do want to waste anymore time. This is really a thrill to me and should be a thrill for all of you. There it goes, okay, all right. Its my distinct honor to introduce retired Supreme Court Justice John Paul stevens. Usually one of the Living Legends of american jurisprudence. Its true. [applause] Justice Stevens begin the 101st Supreme Court justice after being nominated by president gerald ford in 1975. And swiftly confirm the u. S. Senate in a unanimous vote. [laughing] thats not happening anytime soon. [laughing] later, while looking back at his presidency, president ford remarked that he was prepared to allow histories judgment on his entire term in office to be rested if necessary exclusively on his nomination of Justice John Paul stevens to the Supreme Court Justice Stevens joined the court when he was 55 55 years d and he served for 35 years. The third longest tenure of any Supreme Court justice in american history. And during those years he shaped Public Discourse on a breathtaking variety of issues, from the rights of Guantanamo Bay detainees to copyright law, to environmental regulation. Whether the topic was flagburning, vote counting, or George Carlin said seven dirty words, Justice Stevens voice which is often all throated weather was in the majority or the minority leaves the saw with a rich history of fine line and also a compassionate human being. With a sense of duty that earned him a bronze star in world war ii as a navy code breaker, and carried for to his retirement from the nations highest court at the age of 90, Justice Stevens has truly lived the life of public service. And it goes on. He continues to write about legal issues and provocative ways including an oped piece he wrote after the parkland massacre for the near times entitled repeal the Second Amendment. [applause] i guess well have to talk about that so we got it right to. So everyone, please rise for great american, a Living Legend in our midst, Justice John Paul stevens. [applause] so how did i do . Do have a dissenting opinion on that or did a deal case . You made me think of something, maybe i should say that when i retired one of the tv commentators called me a quitter. [laughing] and i explained that i had reasons for retiring, which with the fact that when i announced my best regarded opinion in the Citizens United case in which the court upheld a rule of unlimited financial donations in election campaigns, i gave a very long dissent. I think it was 86 pages. Thats fairly long. I summarized it in less than that, but had some difficulty articulating what i was trying to say at the time, and i explained that i apparently had some kind of a problem that persuaded me that i should retire. Because if i is going to have difficulty speaking and doing my work, i should quit. That was the reason why i became a quitter. [laughing] so i thought i would explain that from time to time i still have problems articulating what im trying to say, and if i do today, please forgive me. Ill do my best. Thats great. [applause] i was going to talk about this later, i know that were on the subject, you probably know this, florida requires its state judges to acquire at the age of 70 which i guess in your case you are just getting warmed up. But what do you think about this notion that Public Servants should have a cap . A lot of people are criticized, for example, of the senators and members of congress who go in well into their 80s. Do you think that there should be some sort of retirement age for members of the legislature or the judiciary . Ive never really been in favor of that because i do think very often that the retirement requirement does cause the public to lose valuable years of service. But it serves the function of providing a reason for why somebody has to move on to Something Else. I guess we should discuss in some extent whats going on lately with the Supreme Court and tickler the last Thursdays Senate confirmation hearing which was broadcast live and watch buys Many Americans as watched the super bowl and other big events. Its one of those events that captivated the nations interest. My question to you as somebody whos made a career on the Supreme Court is, is this the best we can do as far as confirmation process where we have this very political process where everybody circuits into their camps and this this is aa that split up almost like a soap opera on television . No, no, i dont think its te best we can do. Certainly we ought to be able to do better because its an issue of credibility that should be resolved on its merits, not on the basis of political speeches back and forth. I should explain with regard to judge kavanaugh that i have a picture of you in my book, ive written a book called six amendments in which a reckoning exchanges in our fundamental law. One of them is to reverse the Citizens United case which allows unlimited political contributions to candidates. [applause] i still feel apparently some of you do, and my dissent had the right in that particular debate. But in my book i describe some of the reasons for the rule that if it should apply annually did apply for many, many years before that case. And in that discussion i describe an opinion written by judge kavanaugh on that very issue. The issue in the case was whether a canadian citizen and a citizen of israel who were living in new york temporarily could make expenditures in elections that were going on at the time. They brought a proceeding in the federal court asking for an injunction against enforcing the statute that prohibits expenditures by foreign citizens in american elections. Judge kavanaugh wrote the opinion upholding the statute and holding that they could be barred from making, giving contributions to an american election. And i i thought that he wrote a very persuasive opinion, and as a matter of fact they put his picture in the book to illustrate my admiration for it. One of the cases that he cited in that opinion was my dissent in Citizens United, which i thought showed the fact he was a very good judge, had very good taste. [laughing] in cases to follow. I forget what the point i was going to say, but in any event, so at the time i thought he deftly have the qualifications to sit on the Supreme Court and should be confirmed if you was ever selected. But ive changed my views for reasons that have really no relationship to his intellectual ability or his record as a federal judge. Hes a fine federal judge should of been confirmed when he was nominated. But i think his performance during the hearings caused me to change my mind. I think as several commentators, larry tribe among film who is a constitutional law professor at harvard, have written pieces in which they suggest that he has alienated, he has demonstrated a potential bias involving enough potential litigants before the court that he would not be able to perform his full responsibilities. And i think theres merit in that criticism and that the senators should really Pay Attention to it for the good of the court. Its not healthy to get a new justice that can only do a parttime job. [applause] how is it different from the Clarence Thomas case . You were there. Clarence thomas had a very bruising confirmation session, hearings in 1991. 1991. How did the other justices react to that in the fact that somebody was a polarizing figure in a body of people who are basically a collegial group of people . Well, there are a lot of differences between that. First of all, theres nothing that clearance did in the hearings that disqualified him from sitting in cases after he came on the court. Secondly, i really dont remember any conflict in the testimony between hemp and anita hill. I think you could leave everything she said and think you may have acted unwisely, and improperly to her without saying he would be disqualified from acting as an impartial judge or an honest judge. And he turned out to be i disagreed with him on most of his important rulings, but as a person, im very fond of him. Hes a very decent, likable person and you cannot help but like Clarence Thomas. Which i dont think necessarily would be true of this particular individual. [applause] will. You watched the hearings and people of watched them and filed his explanations of things in is in your book have noted that some of the things that he said under oath were some level of being evasive or not true. Is that in itself disqualifying when you swear to tell the truth before Congressional Committee and get a number of facts wrong or mischaracterized . Im not aware of any facts that he got wrong, that clarence got wrong. Not clarence. Talk about justice kavanaugh. Im sorry. It is an important fact, yes. Is it disqualifying . Not necessarily. I dont know, but i would think in this case there are enough people who have been put in the category where he would not be able to sit as a judge. Youve been a gigantic proponent of the separation of the three branches of government. To the point where you almost didnt participate in swearing in of Justice Roberts because george w. Bush administration wanted that ceremony to happen in the white house and you from billy it should happen in the Supreme Court. I wonder if you could talk about why you think its so important that the Supreme Court are members of the Supreme Court not seem cells is being aligned with any particular president. I really think it is important, and in my particular case when jerry ford into the Supreme Court and he persisted in the ceremony which i thought was really appropriate because the ceremony is the Supreme Court ceremony, its not a president ial ceremony. In my own case everything went beautifully. And for sandra day oconnor, Ronald Reagan came to the court. But in later cases they decided to hold the swearing in ceremony at the white house rather than at the court. I think that sends an incorrect message saying this is a president ial event when it really is not. The president should have nothing to do with it and no continuing influence on his nominee. So i thought that was symbolically a mistake, and i refused to attend probably four or five swearing ends of my colleagues, david souter, Ruth Ginsburg and Stephen Breyer were sworn in at the white house. In each case i did not go, but i did swear in john roberts because i strongly approved of the appointment and thought he was an excellent appointment. I still think hes an excellent chief justice, even though i disagree with him on a number of his rulings but hes a very fine person. I thought if i did not go to the white house on his swearing in, it would have created an impression that i did not approve of the appointment, which was not true with the others so i did go to the white house and swear him and at that time. I think that was right thing to do. And the obama appointments their health at the Supreme Court, correct . Yes. Obama has follow what i think is the correct practice in this regard. Justice stevens also wrote an opinion on a case that is also somehow relevant and that was the paula jones, bill clinton versus paula jones case for your opinion basically said that a sitting president is not immune from any sort of civil prosecution or any kind of civil litigation and can be held accountable while serving as president. Do you feel the same way about a president that has been embroiled in a criminal prosecution . Should the b and unity from a president participating in that sort of event . That basically sort of the fundamental rule that applies is no one is above the law. No individual is above the law. And i would assume that would apply to federal law in current times as well as so you not persuaded by the argument that he president s job is so important that to get bogged down in a criminal prosecution would in effect make him not a very effective president and that it should wait until after he is out of office . Well, the court hasnt faced that squarely, but i would think it would be most unusual that will be a justification to postpone a trial. One of the other cases you really vociferously oppose was a bush v. Gore decision. I think about another lengthy patent opinion, not 86 pages but what to do some of it and ask you this question if you wrote, it is often a minimum to administer this judicial system that is the true backbone of the rule of law. Time when the will heal the wound inflicted by todays decision. One thing is certain. Although we may never know with complete certainty identity of the winner of this years president ial election, the identity of the loser is perfectly clear. Its the nations confidence in the judge as a partial guarding of the rule of law. Thats a pretty strong statement. Thats correct. [laughing] [applause] well, how will be done over the intervening 18 18 years . Have we done much to repair that damage that was done in your mind after bush v. Gore or has gotten worse . Has the court become more political, more of an arm of the Political Party . I think its worse. I regret to say it but i really do. I think that case was a terrible example of judicial behavior, and if you could be erased and start over again, we should do so. One of the ironies about that case, of course the election might have become, come out the same way because they had a ballot in Palm Beach County i guess that caused voters mistakenly to vote for buchanan. They wanted to vote for buchanan but they did speak they want to vote for gore i think that was the theory. Right. They punched in buchanan. I think those studies showed those particular ballots were sufficient in number to account for the total election in and florida and, therefore, in the whole country. So i think we now know what mightve been the answer to the election. But i dont think we modified our lack of confidence in the decision, because its ironic in all of the opinions that were written in that case, theres only one opinion that explains why the Court Granted a stay of the recount. The florida Supreme Court ordered a recount throughout the state, and the actual holding of the court was to enjoin the recount. What opinion that explains the reasoning. The one opinion in the case was Justice Scalias response to my dissent from the order to stay the recount, which surely shouldve been explained on its own merits because it was such importance. The answer to the request for a recount was there was no irreparable damage. There has to be irreparable damage to enjoin public action, and there was no showing of irreparable damage, and that was the debate between Justice Scalia and me. That and speaks typically ged of corporate you also apply retirement Justice Scalia, is tell her to see 2008. That was that was another one that really bugged you which, for the first time in u. S. History, it enshrined a person individual right to have a firearm. You thought that was a disastrous decision. Well, i did because it had been settled law throughout our history prior to that decision, that the Second Amendment merely protected the right of militia to firearms. And the reason they had that right was, at the time, shortly after the revolution and in our early history there was a fear that the National Government might be too strong and the state militias needs to be able to protect themselves with their own firearms. That certainly is not a common problem today, that im aware of it anyway. And so not only is there a total absence of historical justification for giving the amendment its present interpretation, but it also doesnt really make any sense. Its out of harmony with the rest of the world. You suggested what some people say is a very radical solution to that. Im going to read what you wrote. That decision which i remain convinced was wrong and debatable have provided the nra with the propaganda weapon of immense power. Overturning the decision the constitutional amendment to get rid of the Second Amendment would be simple and would do more to weaken the nras ability stymie legislation debate and block gun control legislation more any other available option. You have proposed that either the Second Amendment should be either eliminated or reworded to it wellregulated militia being necessary for the security of the free stick in the right of the people to keep and bear arms when serving in the militia, those five words, shall not be infringed. No problem was insoluable. And people made up their minds that the present is more harm than good. It seems they had be able to work out a way to confront the problem. Okay. I have to ask this other question, too, and i wonder if you have any strong feelings on it. A lot of republicans, now they seem to know how to get the Supreme Court justices. You have to belong to the Federalist Society and you kind of get groomed in a very orthodox way to adhere to their principles and the reason they do that is in part because of you. So, you were appointed, you know, by Richard Nixon to court and gerald ford and after 35 years turned out to be a liberal. Justice sueder nominated by h. W. Bush, turned out to be as liberal as you. Anthony kennedy, appointed by reagan turned out to be the b biggest block in roe vs wade. And the people turned out to be liberal on the court. Why did you, sueder and kennedy drift away from the Republican Party . First of all, ive never really have been a political person of any kind. Im not conscious of ever changing my basic views and first it was clear from the letter you read, when they started the president ford would still appoint me. And i think that what has changed is that the very large number of republicans really dont think all republicans are like donald trump. You dont think so . No. But if thats not true, why is the whole apparatus of the party get behind him . I dont know. [laughter] thats an honest answer. Okay. Another case that when people think about your long history, one of the cases thats brought up is the chevron versus nrdc. In the chevron case you created a Legal Standard thats lasted for decades and that is basically that the Congress Writes laws and everything thats sort of in that law isnt spelled out, but federal agencies are entrusted to enforce those laws and you wrote what the federal agencies decide as far as enforcement should be carried as the weight of the law and shouldnt be litigable by the courts and its known as the chevron doctrine. Its important for environmental law. The epa intemperatures federal regulation and come up with rules. If youre a polluter you dont like the epa rules, but under your doctrine theres no way to go to court and change. Now were seeing that doctrine of yours really come under stress. And judge gorsuch, and judge kavanaugh if he gets confirmed and a michigan case in 2015. And that doctrine of yours is fading away and i feel like if you still feel like you need to defend it . Yes. Why should it be defended . Because i really think its a sound doctrine. Thats interesting when it came before the court it was my third or fourth year, on the court 1984. 1984. It was in congress and there was disagreement among us and brennan and Warren Berger thought the the court of appeals by Ruth Ginsburg, i think, had set aside an Agency Ruling and they brennan and berger among others thought that that was the right thing to do, that the judges should look at the issue and decide what is right and not leaning one way or another. Whereas, what ended up in the case was that when youre in doubt, you should give defer to the agents because they are experts in the field and they have more knowledge of particular problems and so in the long run it makes more sense to back the agency that has the political spokesman for the point of view. And we discussed it at conference and there was really disagreement among us and finally we byron white was the senior judge on the court and he said, well, lets give it a try. Write the opinion out that way and see how it comes out. And i was not completely clear on my view at the time either. But anyway, i did try my hand at writing the opinion and i persuaded the entire court and its the only time in my history on the court when i visited another judges chambers to try to talk him into joining my opinion. [laughter] and i did this with bill brennan and i finally persuaded him to join my opinion and we ended up with a unanimous opinion, byron signed, but there was uncertainty within the court even after the discussion. The more i worked on it, the more i became of the views set forth in the opinion and i read it kind of proud of the fact we ended up as the unanimous view and in retrospect, it was dead right. It makes a lot of sense to give the people in the government who had most Specialized Knowledge of the particular area a preference when in doubt, takes control along with the review. And that case has just been looked at it because i asked my law clerk to check for me and its been cited let me see, 15,900 times its been cited with approval. Right. But its now subjected to criticism as maybe incorrect. Well, but the most important thing to me is that the doctrine started decisive and certainly should protect a decision thats been repeatedly decided over many, many years and almost never disagreed with. You should follow the side and the fact that theyre even considering rejecting the case as well established as that it seems to me reflects on the court itself. And i do think that the court is subject to criticism these days for failure to give adequate respect to the existing decisions. That case was 1984 and you say it should be settled. Roe vs wade was prior to that, and should that hold true, if the court finds a way to overturn roe, do you think that would be the activist court that some people complain about . Yes, i think that should be treated as the law and thats basically what kennedy, oconnor and sueder said in the case several years ago. And that that is more important than whether the case was correctly decided or not. And i think thats right there are some rules that ought to be accepted as part of the law and not rexpd over and over again and i think thats an example of such a case. I want to bring another case up in case you think that Justice Stevens is a wildeyed liberal. Im going to talk about the flag burning case. Oh, yes. Where Justice Stevens was in the minority against some of your good buddies, William Brennan and Thurgood Marshall writing dissent it should be illegal for americans to burn the flag and i want to read what you wrote. The creation of a federal right to post Bulletin Boards and graffiti on the Washington Monument might enlarge the market for Free Expression at a cost i would not pay. Similarly sanctioning the public desecration of the flag will tarnish its values both for those who cherish the for what it waves and thats burning it. That is not justified by the trivial burden on Free Expression occasionally requality an alternative mode of expression, including utterly words critical of the flag. Its more than a symbol of national unity, it symbolizes to characterize the society that has chosen that emblem as well as a special history that animated the growth of those ideas. The question, do you still feel that way today and in light of the protests were now seeing by people who are protesting the treatment of black citizens by police officers, and National Anthems playing at nfl games, players kneeling and others suggesting it should not be permissible. Is there a nexus between flag burning and making that outlawed and disrespect during the playing of the National Anthem . Theres several questions in that. That. Here is what i expressed. I have no hesitation whatsoever in thinking that case was incorrectly decided and one example of in support of that position is that nobody burns flags anymore. It is not a common method of expression that has any usefulness at this society and i do think that the symbolic importance of the flag was injured significantly by that decision and unnecessarily. I really dont think it accomplished anything and i do think, and i think back to world war ii, in those days, the country was so united you cannot imagine the complete agreement within the country about the war in europe and jap japan, largely as a result of the japanese attack on pearl harbor and the country really felt 100 we had to win the war and had to do it completely and everything else. But i do think that there was an important patriotic value having a flag thats a symbol of unity for the country as a whole and i think what i said in that opinion really i still, am still moved when i think about the particular issue, and i do not think that the refusal to respond at Football Games is at all comparable. I just dont think its the same issue, but anyway, i have always felt very strongly about my defending that case and i would write it again. That what do you think of the current protests during the National Anthem . Does that bother you as an american, a patriotic american or no . I dont think so. Thats not the same kind of dramatic instance as burning a flag in a public place and the city in texas as they did in that case. Right, right. [applaus [applause]. As long as were talking about First Amendment case i wanted to mention the George Carlin case, i made reference to it in the introduction. George carlin famously did a routine about the dirty words he said over the air and he said it over the air and fcc sued the station and it was one of your early cases 1978 and you ruled in the majority that political speech is different from comedic speech that basically if youre making a political speech you could use a lot of bad language and there was a previous case when somebody said fthe daft or something, and that George Carlin didnt have the same rights or the station that broadcast it because its of lesser value. You made the distinction there are Different Levels of First Amendment speech protected. One of the problems in that case the broadcast time was during the Time Available to children and that seemed to justify the particular actual they applied in that case. You still would hold that today that i suppose so, although the whole attitude towards indecent speech has become much more tolerant. Yeah. And maybe you should say its not that big a deal anymore. In fact, we have a later case involving related issue to that particular one, one in which i think i came out the other way. [laughter] well, thats the other thing i wanted to talk to you about. Youve had so much work and so many decisions that youve made and youve made some strong opinions. Every 35 years looking back, are there any of them you said, i think i got that one wrong. Id like another chance at that one . Well, there probably are. But i dont think of any. [laughte [laughter]. It doesnt bother you either way. And im sorry i cut you off. I was going to say you do the best you can with a particular case, as you well know, and you try to get it right. If youve done your best and you come out youre pretty well satisfied. What about, youve talked about cases that have really bothered you that you think have really hurt this country. On the pecking order of where they are, would you put Citizens United at the top or Something Else that because i know youre very big in gerrymandering and the problems its created in elections and the lack of sort of democracy that weve gotten in elections. Where does that sit in the hierarchy . Gerrymandering is right up at the top because its such a simple solution. Regional gerrymandering is prohibiti prohibiting, but why political gerrymandering doesnt have the same, theres no relation to that. Is there a way to do that out of politics . Were letting officials take the district so they normally draw them to benefit themselves. Is there a better way . Ive been thinking of writing a New York Times piece saying if i based on the james comey, the higher truth and so forth, once a legislature is voted for a gerrymandering district. He should not vote for it. He should know that its improper, improper district and its like cheating at card or something. Something you just dont do. You should not draw a distinction just to affect the outcome of elections. That hams. It happens so many times, but it shouldnt. And if legislators thought about the consequences of what theyre doing, sometimes they might think, they might stop and say, this is wrong. Maybe its silly. Justice stevens, i think youve been out of political life for a few years. [laughter] its a laudable thing to do, but im just wondering, people have suggested maybe there ought to be commissions that take or mathematical models where you get a state and you divide it up and you let the computer divide up the districts and take it out entirely. Well, any way to bring a neutral result would be fine. Okay. You mentioned reading james comeys book. I wonder what in the course of days do you read . What are the kind of books that you read for pleasure . Im assuming its going to be a pg here, but what what book do you read now . What sort of books do you read . Well, im just reading a book about the history of the country in which the first chapter is about the duel between Alexander Hamilton and aaron burr, a reallying interest story, yeah. Okay. And youre obviously a historian of the Supreme Court itself. Looking back on youve known five Supreme Court chiefs, justices of the Supreme Court. Looking bag back further on, how would you think is the most influential person in this court in the last century. John roberts. Hes by far the best chief justice the court had. I dont agree with all the im sorry, say it again . John roberts. The current yeah. Thats a surprising answer for somebody you dont agree with a lot. I dont, but hes a very fine man. You cant help, but like him and admire him. 100 in his corner. Really . Thats interesting. Youre best midwesterners. Yesments indiana, illinois and notre dame. There you go, the mafia, notre dame mafia. Other than that hes a likeable guy, why is he effective as a chief justice . Well, hes a very efficient chief executive and handles all the matters that come to that office and then require attention. He does a very good job. R you ever tempted to go back to your colleagues and give them your two cents on whats going on . Yes. [laughter] im tempted, but i dont do it. Well. Justice stevens, its been a pleasure talking to you. Youre a wonderful gentleman and a treasure to the United States of america and we thank you for your service. Well, youre very nice. [applause] [inaudible conversations] [inaudible conversations]. [applause] [inaudible conversations] [inaudible conversations]