The retired Supreme Court justice speaks about his new memoir, The Making of a Justice: Reflections on My First 94 Years.
The book is wonderful, and it contains not only great biographical detail, but a lot of new insights for those of us who teach some of the cases you discuss in the book.
Well, anybody who is able to wade through the entire book is entitled to high praise.
No, it’s very readable! So — will you tell me a little bit about why you decided to write the book?
I really don’t know. I started to write about the party, on my 94th birthday. The project just grew after I started.
So, you didn’t sit down intending to write a comprehensive autobiography?
No, I didn’t, I definitely didn’t. I didn’t have a clearly defined purpose at any time in figuring out what to write in the book.
Let me ask you a little bit about the process of writing the book, because it’s so detailed. What was your methodology? Did you rely mostly on your memory? Did you have journals that you kept along the way, or did you rely on your papers from the court?
It was actually a combination of different things. When I got up to the court, it occurred to me that I should ask my law clerks for help, and I wrote a letter to all of the clerks, asking them for their memories of their own terms.
What about your time before the court — did you keep journals when you were young, or did you mostly rely on your memory in reconstructing those events?
I mostly relied on my memory. That was pretty much the entire basis for the stuff about my pre-court years.
Wow! That’s incredible recall, Justice.
Well, they were pretty memorable events that you don’t forget. Meeting Charles Lindbergh or Amelia Earhart or seeing Babe Ruth hit a home run. You don’t have to have much of a memory to have those things come back to you when you start thinking about your childhood and so forth.
When you were 12, your father was charged with embezzlement for transactions involving loans to save your family hotel, which was in distress after the stock market crash of 1929. The Illinois Supreme Court later unanimously reversed his conviction. Could you talk a little bit about what impact that early experience had on your later views on criminal justice?
It certainly convinced me that every now and then, criminal justice can go wrong because my dad was anything but a criminal. He was a very fine guy and completely honest. My memories of him were teaching me to tell the truth and things like that. That was an important event in my early life. There’s no doubt about it.
You think it instilled a degree of skepticism about the results of the criminal justice system?
Yes. It is a system which is a fine system, but it makes a lot of errors. The fact that it is capable of making errors is something we should keep in mind when we authorize something like the death penalty which is just — it cannot possibly be defended by the law of averages or something like that. You just should not put anybody to death unless you have absolute certainty on the issue of guilt or innocence.
[An] episode in your early professional life is the period you spent serving as minority counsel on the Monopoly Power Subcommittee of the House Judiciary Committee. I’d always had the impression that it was a very formative experience, in particular in terms of your views on statutory interpretation. I was wondering if you could talk a little bit about that — how it impacted your view of how the court should approach interpreting statutes.
It was really an important part of my career because it was the first significant public job that I ever had. Of course, I think the working relationship between the members of the two parties was much more healthy at that time than it became later on. Almost all the issues that came before the committee, the members of the committee did not approach them in a partisan sense at all. They really worked together on the investigations and their role in them. I just have a different impression of the attitudes of the members — it was very different then than I think it is now.
What about specifically in terms of the role of legislative history and other interpretive devices in interpreting statutes — how do you think that experience affected your approach to answering interpretive questions, deciding how to address ambiguity in statutes?
I never really thought there was any reason to be skeptical about legislative history. During my years as a practicing lawyer, it just was part of your study of what Congress was trying to say in their statutes. I never really considered judges or scholars as either those who used legislative history or those who were opposed to it until after I got on the court. It seemed to me, obviously, that when you’re trying to figure out what a group of drafters meant in what they wrote, anything that sheds light on the history is appropriate to consider.
One related question — I believe that it’s the case that Justice Stephen Breyer is now the only member of the court with any substantial legislative experience. At the same time, all of the most recent appointees have served in some capacity in the executive branch. Does that have any significant implications either for statutory interpretation or maybe in separation-of-powers cases?
I had not really focused on that change, but it probably is significant, and it may have an impact on the work of the court. It may well be that Justice Sandra Day O’Connor’s experience as a legislator and Justice Hugo Black’s experience did have an impact…being more conscious of the public consequences of the decisions. I just haven’t really thought about it, but I do think that there’s a failure to pay adequate attention to the public impact of decisions…and that’s quite unwise.
Talk a little about why, of all of the cases that you participated in during your time on the court, Heller is the one that still keeps you up at night.
It’s just a recurring problem that confronts us almost — if not on a daily basis, then at least on a weekly basis. These mass shootings are peculiar to America and are peculiar to a country that has the Second Amendment. So, I think that interpreting the Second Amendment to protect the individual right to own firearms is really just absurd, and it’s also terribly important. It happens over and over and over again. I think I should have been more forceful in making that point in my Heller dissent.
It’s a characteristic of American society that is not shared by any other civilized country. I find it really mind-boggling that my suggestion that we ought to approach the problem by just getting rid of the Second Amendment really has not captured more popular support, because it’s so obvious that it’s an undesirable part of our government structure.
When Heller was decided, there were people who argued that whether it was correct or incorrect, it was a victory for originalism, because not only Justice Antonin Scalia’s majority opinion, but also your dissent engaged very extensively with founding-era materials. Explain why you decided to fight so much of the Heller opinion on originalism’s terrain.
I didn’t really think at the time or I don’t think now that the question of whether originalism is sound constitutional interpretation had any particular relevance to the outcome of that case. We’re trying to understand what the draftsmen of the provision intended, and a lot of the evidence depends on the fact that New York and Philadelphia and Boston had local laws that would have been unconstitutional under the amendment as construed today. That’s the point that Justice Breyer made so effectively in his dissent. I didn’t think of it in terms of whether we were fighting an originalist battle or just a common-sense battle.
Bush v. Gore…is also a fascinating part of the book. You end your discussion of that case by saying that you “wish that the public confidence that the Court had earned when it ordered President Nixon to produce tapes containing evidence of his wrongdoing could be so easily restored,” but that you “remain of the view that the Court has not fully recovered from the damage it inflicted on itself in Bush v. Gore.” So, there’s this suggestion that both the Nixon tapes case and Bush v. Gore are particularly important when it comes to the public’s faith in the court as an institution. What in particular makes those cases so important? Is it that the court appears to many people to transcend partisanship in United States v. Nixon, while many people read Bush as representing the court succumbing to partisanship?
The other thing that’s a significant point in both cases is the quality of the majority opinion. The opinion in the Nixon case made a lot of sense; there was really not much doubt about the correctness of the decision. But the majority opinion in Bush against Gore is even worse than I thought it was at the time. I read it over more carefully working on the book. I found that the opinion is internally inconsistent as well as just not making any sense. The quality of judicial work in both cases is a significant aspect of the importance of the cases.
The term that I clerked [for you], in addition to being the Heller term, was the term in which you announced in Baze v. Rees that you had concluded that the death penalty could not be constitutionally administered. You suggested earlier that there’s a straight line between your early experience with the criminal justice system and that 2008 opinion, but obviously you were on the court for many years before announcing your conclusion about the death penalty. Had you long anticipated that you were moving in that direction? Did it surprise you when you got there?
It did surprise me. I really remember reading John Roberts’ opinion in the case and thinking his whole business of it doesn’t make any sense. It really dawned on me during the deliberations on that case that the death penalty really cannot be justified on the grounds that ostensibly supported it. I really think it turns out to be just quite wrong.
Reading the chief justice’s writing in that case was what crystallized it for you?
I think that’s right.
Wow. Okay, so in the course of preparing this book, you revisited nearly four decades of Supreme Court decisions. [Did you come away] with any new insights into the court’s treatment of precedent? On balance, has the court been sufficiently protective of stare decisis or consistent in its treatment of precedent, both historically and, to the extent you wish to comment on it, in recent years and today?
I think it’s been insufficiently respectful of prior decisions through the years, really beginning with Justice Thurgood Marshall’s writing in his dissent — the last dissent that he wrote [in Payne v. Tennessee]. I also dissented in the case. It’s a victim-impact case. And I really think it’s gotten even worse in the lack of respect for that doctrine that the court has developed over the years.
To say in the case they decided a couple weeks ago [Franchise Tax Board of California v. Hyatt], overruling a case I wrote for six justices, and five justices overruled it. It made me think, maybe when they overrule they ought to find out whether at least the majority of the judges who have addressed the issue agree with it. Because overruling Nevada against Hall — it makes absolutely no sense in terms of…looking into the future. Because states have been sued in the courts of other states so rarely, that you might just as well have a rule you can follow rather than change it 20 years later for a different rule that clearly is not any better than the other one.
Of course, my own views about sovereign immunity made the case particularly easy for me. But the reasons given for overruling it don’t make a lot of sense at all. Of course, you can’t spend a lot of time criticizing it because its impact on the law — because this happens so rarely, once or twice in 15 or 20 years. But to overrule the case? It just doesn’t make any sense at all. [Justice Clarence Thomas’] opinion for the majority really doesn’t explain why they needed to take a second look at it anyway.
Yes, he has only a very short discussion of stare decisis, and Breyer’s dissent seems to suggest that the case’s insufficient respect for precedent has significance beyond just the narrow immunity issue presented in the case. Do you agree with that?
Yes, indeed. I certainly do.
Your discussion kind of answered this question. I was going to ask how much you keep up with the court these days. I gather you read most of what they produce?
Yes, I do. It’s a principal source of my reading. I’m a little bit behind right now, but I do keep up with their work.
Just one more question. [It’s] about proposals to change or reform the Supreme Court. Various proposals to change the court by increasing its size, changing selection methods, imposing term limits — some of which have been around for some time — seem to be attracting more public attention these days. [Do you have] any interest in commenting on any of those proposals?
I think the number nine is right. They should stick to that. In time, perhaps, they’ll come back to their senses on some of the issues. I don’t think the remedy is changing the size of the court.
[Editor’s note: This interview originally ran in SCOTUSblog. It is excerpted here with permission.]
Kate Shaw is a law professor at Cardozo Law School. She clerked for retired justice John Paul Stevens during the 2007-2008 term.
