On Citizens United and “activism”
Q: Sometimes those who disagree with Supreme Court decisions claim that justices who voted for them are acting in too “activist” a manner. Do you see so-called judicial activism as a problem?
A: Certain decisions can be criticized as activist decisions. I think the decision in the Citizens United case (that allowed unlimited corporate spending on political campaigns) last year fits that quality. But I think the judges in the majority thought they were doing their job. I wouldn’t accuse any of them of having a political agenda. The major misunderstanding is that people think the court has its own agenda, that it can go ahead on its own and rule on things, when in fact it merely decides cases litigants bring to the court and does its best to decide those cases.
On Diversity and the High Court:
Q: In years past, the court consisted solely of older white men. There has been an effort to change that in recent decades. It would seem that having people of diverse backgrounds might strengthen the court.
A: That’s true, of course. Diversity is always a positive value in a multi-member, decision-making body. But unfortunately it’s only nine seats, and you can’t represent every area of the country or every point of view you would like to. Personally, I would like to see more Midwesterners or Westerners and not as many from the Ivy League schools. But that does not mean any one of them is not fully qualified. It’s a problem that there are only so many seats available, and each time (presidential administrations) have made excellent suggestions right along, but they have not tended to diversify the court.
Note Stevens does not view intellectual diversity as a form of diversity:
Q: Are diverging political views important to informing good court decisions?
A: I suppose, but I was using the term to mean diversity as between different parts of the country and different backgrounds. For example, we don’t have any former legislators on the court. Different backgrounds are helpful because you do get different insights in your group discussions.
On Scalia and legislative history:
Q: Why would having served as a legislator be of value to a court justice?
A: If you understand the legislative process, which you do more thoroughly if you’ve been a participant in it, you can sometimes form better judgments on what the Legislature was trying to achieve with a particular statute. That is one issue I disagreed very seriously with my good friend (Antonin) Scalia, who thinks you should not look at legislative history. But I think most justices have found it very helpful when you have close cases.
On Living Constitutionalism:
Q: There is longstanding disagreement on whether the Constitution is a “living document” subject to differing interpretation over time or something akin to holy writ that should be applied in its most literal sense whenever possible. Where do you come down on that?
A: You come down in different places on different issues. In some respects, it is exactly the same as it was. The age to serve as a senator or president is cut and dried. But there are provisions in the Constitution that have been interpreted more broadly than the people who lived at the time the provision was adopted ever intended or expected.
Two examples come to mind over and over again. The cruel and unusual punishment clause, if it was interpreted as it was thought of at time of adoption, it would permit the death penalty for 7-year-old children. It was an evolving concept and I think the drafters of it expected to be interpreted more broadly.
And the religion clause is another good example. When the establishment clause was adopted in the First Amendment, the framers understood it to be protecting one Protestant religion from being dominated by others. There was no concern to avoid prejudice against Judaism or Muslims or atheists. . . But the principle had a much broader meaning, and it has been interpreted over the years to cover protection of the beliefs of non-believers and minority religions that nobody was even conscious of.
You must look at the original drafting and history and so forth to try and understand what’s going on, but you still have to figure out what is the entire scope of the principle. For instance under the commerce clause, they had very narrow expectations of what the commercial community might develop into, but that surely didn’t mean they (would not have been) willing to legislate against the Internet and things like that.
And was Stevens persuaded to change his mind at conferences?
Q: Several times a month during its terms, the court comes together in conference to discuss the cases currently under review. Did those discussions ever change your mind about how to vote?
A: Not very often, but once in a while it happened that I have been persuaded to change my opinion. Usually you are pretty firm in your view by the time you get to conference. But it is really not 100 percent firm until the opinion is announced. People sometimes change their mind during the writing process. I know I have written draft opinions and while I was writing it I decided this didn’t make any sense.