When you interview a 99-year-old Supreme Court justice, one who has written some of the landmark opinions of modern times, you don’t imagine in advance that the subplot of the interview is going to be Ping-Pong.
But in a conversation with retired Justice John Paul Stevens, his racket skills came up almost immediately.
During Stevens’ 35 years on the nation’s highest court, I had seen him several times in his chambers. Usually without his jacket. But always wearing his signature bow tie. This time, though, he was wearing a red and white polo shirt and blue plaid Bermuda shorts. He had just finished a game of table tennis at his condominium in Naples, Fla. His eyebrows were wild, and he was wearing what appeared to be two watches, one a traditional timepiece and the other some sort of a Fitbit-type contraption.
Stevens has always been very physically active — and competitive. He used to arrive at the Supreme Court some days still dressed in his tennis clothes and literally jumping up and down if he had won his early morning contest. He said that these days he can no longer get around the tennis court safely, but he can stand at the tennis table and play a decent game of Ping-Pong. One or two days a week he also plays nine holes of golf. “I don’t hit the ball very far,” he says, “but at least I can hit it.” And he swims in the ocean (he does the crawl), though he admits ruefully that he makes it in and out of the waves with the aid of neighbors. Oh yes, and he plays bridge several days a week, too.
Apparently, none of that was enough for the justice, who retired in 2010 at age 90. So he has written a book, his third. This one is called The Making of a Justice: Reflections on My First 94 Years (the book ends on his 94th birthday).
The book and the takeaway
Stevens’ new book, hitting shelves May 14, winds through his growing-up years, including the arrest and eventual exoneration of his father on criminal charges; his years as a Navy code breaker in the Pacific Theater during World War II; and his law career, from attending Northwestern School of Law on the GI Bill, to life as a litigator and lower court judge.
But the bulk of the book is about Stevens’ life on the Supreme Court — what happened each term and what he thought about it.
It is, in essence, his last hurrah. But the justice hesitates when I ask him what the takeaway from the book should be.
“The world is changing much faster than I anticipated,” he replies.
For better or for worse?
“For the worse, I think,” he says.
When I press him as to why, he answers as if he were still on the court.
“Well, in my job, I avoid political commentary,” he says, though he concedes that he is “offended by much that the leaders of our country are engaged in now.”
In his last years on the Supreme Court, Stevens often lamented the direction the court was taking. In this book, the decision he singles out as “unquestionably the most clearly incorrect decision during my tenure on the bench” is District of Columbia v. Heller, the 2008 decision in which the court ruled for the first time that the Second Amendment guarantees an individual the right to own a gun.
He faults the court’s five-justice majority opinion as “dead wrong” in its analysis of the history and the reasons for the amendment. And he notes that at the time the Second Amendment was adopted, cities routinely regulated guns in the name of public safety. He argues, too, that the literal words of the amendment reserve the right to bear arms for the militia, not individuals acting as individuals, and that the court, in adopting a contrary view, was not adhering to long-established precedent.
What happens next on guns?
Stevens writes that he initially thought he might be able to persuade Justice Anthony Kennedy to vote with him and change the outcome of the case, but Kennedy did not change sides. Instead, Kennedy insisted — as the price of his vote — that the majority opinion, written by the late Justice Antonin Scalia, contain language that provided for reasonable gun regulations.
But Kennedy has retired, too, replaced by Justice Brett Kavanaugh, who, as a lower court judge, viewed as unconstitutional all the major gun regulations to come before him.
In light of that, I asked Stevens what hope he has for the court upholding serious gun regulation were it to be enacted into law. His answer was succinct: “I suppose the odds are not very favorable.”
It’s not just guns. Stevens is equally critical of the court’s recent decisions striking down all manner of campaign finance regulations, and the gutting of voting rights legislation. Does he think the court is taking a radical turn to the right? “Yes,” he replies. “I really do. I think some of the decisions really are quite wrong and are quite contrary to the public interest.”
The most ideological court since the 1930s
In our conversation, I noted the frequent attacks on the courts from the body politic these days, and that in response, just about every Supreme Court justice, liberal and conservative, goes around saying, in essence, “We are not politicians, we’re judges,” but it gets harder and harder for some people to believe that.
“Well, it’s harder and harder to believe,” Stevens responded. But, he added, “There’s still some hope that it won’t be totally that way.” And he pointed to Chief Justice John Roberts who, he said, “occasionally takes a different position from the other Republicans.” That said, Stevens observed, “it is true” that the court “seems to be more ideological than it’s been since the 1930s.”
Conservatives have been working for decades to achieve control of the Supreme Court and to turn the court in a different — and in their view — better direction. So what’s lost when the court swings so pronouncedly in one direction or another?
Stevens sounds a bit sad when he answers the question: “I guess your hope for a more neutral approach diminishes the more that happens.”
Stevens’ legacy in the words of the president who appointed him
Appointed to the court in 1975 by President Gerald Ford, Stevens was considered a moderate conservative then, and always identified himself as a Republican. But by the time he retired in 2010, he was considered the court’s most liberal justice. He has consistently maintained that for the most part, he didn’t change; the change was in the composition of the court.
Indeed, in the years that followed his appointment, increasingly conservative Republican presidents appointed increasingly conservative justices, and the Republican appointments outnumbered the Democratic appointments by more than 2 to 1.
Stevens’ book may be more detailed about the law than some readers want, but he is most candid about himself and some mistakes he thinks he made along the way, especially in death penalty cases. He now wishes that some of the protections he thought were understood for defendants in capital cases were more precisely spelled out.
Like most justices, he bats away questions about his own legacy, though many of the decisions we now take for granted are from his pen. But he clearly is proud of the evaluation of the president who appointed him, Gerald Ford.
In 2005, Ford, after noting that presidential legacies rarely refer to the justices they appointed, wrote:
“Let that not be the case with my presidency, for I am prepared to allow history’s judgment of my term in office to rest (if necessary exclusively) on my nomination thirty years ago of Justice John Paul Stevens.”
Ford went on to catalog and “endorse” Stevens’ views of a secular society with strong separation between church and state, his views on “procedural safeguards in criminal cases, ” and his view that the Constitution gives “a broad grant of regulatory authority to Congress.” Summing up, Ford said of Stevens, “He has served his nation well at all times carrying out his judicial duties with dignity, intellect, and without partisan political concerns.”
Ford, however, was the last Republican president to hold those kinds of legal views. Over the last two decades, Republican presidents have prided themselves on appointing judges who call themselves originalists, meaning that the Constitution should be interpreted as the founders meant it to be in 1787. Critics of originalism note that almost as soon as the ink was dry on the Constitution, the founders themselves did not agree on what they meant. And to this day, Supreme Court justices argue about the history and meaning of the words in the document.
So I asked Justice Stevens what he calls himself. If not an originalist, what is he? His answer returns to the beginning of our interview: “I’m a person who plays Ping-Pong once in a while,” he says with a laugh.
It turns out that table tennis is a longtime sport for the justice. When he was first on the court, then-Justice William Rehnquist, apparently on the spur of the moment, drafted Stevens and one of his clerks for a game. Stevens and his clerk, both about 5-foot-9, walked down to the basement wearing street shoes, slacks and dress shirts. Waiting for them were Rehnquist, 6-foot-2, and his even taller law clerk, both in athletic garb. But as Stevens reports, “The little guys in the business suits won.”
So is he the champion at his condo now?
“I’m better than anybody my age,” he replies. “If you can find anybody my age that plays, I’ll challenge ’em.”
The competitive spirit lives on.