No one should be surprised that John Paul Stevens is still issuing opinions, a year after he retired from the Supreme Court.
At 91, without the judicial robe he wore for 41 years, Stevens gives speeches, writes book reviews, has completed a memoir of the court and regularly critiques the work of his former Supreme Court colleagues.
He’s sure they don’t mind.
“Nobody’s expressed any criticism,” he said recently in his new chambers at the court, with an expansive view of the Capitol at his back.
“It seems to me it’s still a free country,” he said with a laugh. “There’s nothing unusual in me expressing disagreement with the majority. I think everybody thinks that’s all in a day’s work.”
He said the court got it wrong in deciding that members of Westboro Baptist Church had a First Amendment right to protest near the funeral of a soldier killed in Iraq. He would have joined Justice Samuel A. Alito Jr.’s lone dissent, arguing that it violated the family’s privacy.
And Stevens can’t get over a 5 to 4 decision this past spring that threw out a $14 million award to a Louisiana death row inmate freed after it was proved that prosecutorial misconduct led to his conviction.
The court’s conservative majority held that the New Orleans prosecutor’s office could not be held liable for not properly training its staff because of a single case of misconduct.
“It just doesn’t make any sense,” Stevens said.
Stevens said he has read all of the court’s work this past term — and he doesn’t think his absence affected the outcome of a single case.
Instead, the former leader of the court’s liberal wing praises both his replacement, Justice Elena Kagan, and President Obama’s other appointee, Justice Sonia Sotomayor, for their early contributions to the court.
“I haven’t felt the court has suffered from my leaving at all, or that I would have contributed anything that they did not contribute,” Stevens said.
The court’s chief justices come in for Stevens’s mixture of blunt criticism and personal fondness in his book “Five Chiefs.” It is a critique and memoir of his association with five of the court’s chief justices. There have been only 17.
He writes about Fred Vinson, whom he met as a law clerk at the court in 1947; Earl Warren, who was on the bench in the only case Stevens argued as an advocate (he lost); and Warren Burger, William H. Rehnquist and John G. Roberts Jr., the three chief justices during his time as a justice.
Stevens makes the point in his book and in the interview that philosophical differences do not carry over into personal relationships or into his evaluations.
He is especially effusive about Roberts, with whom he disagreed frequently in the five years they served together. He criticizes some of the decisions in which Roberts was in the majority but nonetheless calls him an “excellent” chief justice and a “well prepared, fair and effective leader.”
In the book, he said he would not rank the five chiefs he knew in the historical hierarchy of the court, but asked with whom he most enjoyed working, he said, “I think just in terms with who’s the nicest guy generally, I think I might well say John Roberts. I’m just really fond of him.”
With his active workload and intense interest in the workings of the court, it might appear that Stevens felt he had retired too early. But he said he hasn’t “had any regrets at all.”
As a retired justice, he is entitled to chambers at the court and a law clerk. Unlike his fellow retirees Sandra Day O’Connor and David Souter, he said he has no interest in sitting in on cases in the lower courts.
“I sort of like not having to read briefs, to tell you the truth,” he said.
So he works on projects he wants to work on and spends November through April at his condominium in Fort Lauderdale, Fla.
Famous for his active lifestyle, Stevens said he still plays tennis, but the rules have changed.
“I’ve got a bum knee,” he said. “I used to be able to cover the court pretty effectively, but I can’t run the way I used to.” So he and the lawyer he regularly plays with have developed a new set of rules.
“He has to hit it to me, and I can hit it anywhere I want.”