Supreme Court justices don't usually tell tales out of school, and retired Supreme Court Justice John Paul Stevens pretty much adheres to that tradition in his new book, Five Chiefs. But in an interview, the 91-year-old justice showed a little leg, as it were, when asked about recent controversies over Supreme Court ethics.
While he was on the bench, Stevens was always meticulous about recusing himself from any case in which he might even conceivably be seen to have a conflict. So what does he think about the wife of Justice Clarence Thomas publicly campaigning against the Obama health care law, and the calls from liberal groups for Thomas to recuse himself from challenges to the law?
Stevens says he is sure Mrs. Thomas is "acting in good faith, doing what she thinks is in the public interest." Nor does he think her actions have the "slightest impact" on how Justice Thomas votes. But, he adds, "one might prefer to have her less active."
Stevens' book is framed as a discussion about the office of chief justice, including a brief history of the first 12 chief justices and a more thorough discussion of the five chiefs he has known, particularly the three he served with in his 35 years on the court. Still, this is also a book about Stevens' own views.
Taking on the much debated idea of original intent, the retired justice disputes the notion that anyone today can, with total clarity, know exactly what the framers intended. Nor, he argues, should that intent be the be-all and end-all of the legal analysis. He points to the First Amendment freedom of religion guarantee as an example, noting that the leaders of the country in 1789 were all Christian, and their concern was to ensure that no particular brand of Christianity got government preference.
The First Amendment's religion clause "wasn't intended to protect the Muslims or the Jewish faith or the atheists," he says. "But once we started to analyze the clause, in case after case, we developed the rules that make it perfectly clear that the principle that was adopted was much broader than the specific purpose of the draftsmen ... at the time. It's a principle that goes beyond the original intent." And that principle, he says, is that there can be no government preference for any religion, Christian or not, and no penalty for any religion or for nonbelievers either.
Of the five chiefs Stevens knew, the three he actually served with were Warren Burger, William Rehnquist and John Roberts. Stevens is not a man with an edge, and he speaks fondly of all three, going to great lengths to describe Burger as a justice who is unappreciated for the good work he did.
But in the end, he concedes that Burger had some unfortunate flaws involving his nonpublic work as the presiding officer at the court's internal deliberations, known as the conference.
Stevens recalls that Burger "didn't state the cases as clearly and impartially as it seemed to me a presiding officer should at the opening of the discussion."
Nor, he says, did Burger seem to understand the positions being advocated by some of the justices, leading to mistakes in the assignment of who would write an opinion.
"He might make assignments to someone who didn't actually have [the] five votes necessary" for a court majority.
Another problem, Stevens says, is that Burger let the discussion ramble on forever. At the beginning of the court term when the justices would sit down to consider the hundreds of appeals that had built up over the summer, the discussion lasted for nearly three days: all day Monday, Tuesday and part of Wednesday.
That changed when William Rehnquist became chief justice in 1986. He presided over the first "long conference" so efficiently that "we were through, I think, shortly before lunch on Monday."
Chief Justice John Roberts also gets high marks from Stevens for efficiency and fairness.
"He's thoroughly prepared. He's very fair in his statement of the case, and he lets everyone have a say at it. There's a difference between him and Bill Rehnquist, in that he allows more discussion after everyone's had a say." Roberts, he concludes with a twinkle, is "a little less totally efficient."
Stevens blushes when he remembers his first days on the court and his failure on one occasion to carry out the duty of the junior justice. Because only the justices attend the conference, if a message comes from outside, or some papers are delivered that the justices called for, a messenger knocks on the door, and the junior justice is supposed to answer. But at his second or third conference, Stevens was so absorbed in the discussion that he forgot.
"It was very embarrassing. Bill Rehnquist sat on my right and Bill Brennan on my left, and both of them got up at the same time to answer, and I realized I had committed a terrible faux pas," Stevens says.
The justices can call out from the conference room by using the phone there, but nobody ever calls in, according to Stevens. Indeed, if the phone rings, it is invariably a wrong number.
"Byron White would answer and say, 'This is Joe's Bar.' "