Sandra Day O'Connor Interviews John Paul Stevens

Paolo Pellegrin / Magnum for Newsweek

O'Connor: Do you think that over the years you were here, your approach to cases changed at all? Or your view of the law? Did you see changes in your own reaction to the law in the cases we heard?
Well, yes, because it is a learning experience. I think nobody knows all the answers when he or she joins the court. You gradually learn about different areas of the law. And you learn through the briefs and arguments of your associates. So it's a continuing learning experience. It's a lot of fun ... one of the most interesting things anyone can do.

O'Connor: I feel the same way about it. Much is done at the time a new justice is nominated to try to see what the justice is going to do. But in fact, is it your experience that the nominee himself or herself doesn't know what they're going to do?
Absolutely, absolutely.

O'Connor: The nominee hasn't addressed all those issues.
You haven't read the briefs. All sorts of questions may come out differently after you study [them]. No, I think it is a terrible mistake in the confirmations to expect the nominee to know all the answers, because you just don't know them at the time.

O'Connor: During your years on the court, according to the press, some thought that you drifted "to the left," whatever that means. Have you read that about your jurisprudence?
I've read that over and over again, and the only thing I would say about that is, I've been asked this a lot and thought about it a lot, and, with one exception, I'm not aware of any case that I voted on as a justice that I would decide differently today.

O'Connor: What was that one about?
That was the Texas death-penalty case. My first year on the court we decided five death-penalty cases, and we held unconstitutional the mandatory death sentences in two states and upheld the nonmandatory statutes in two other states. And I think upon reflection, we should have held the Texas statute—which was challenged in the fifth case—to fit under the mandatory category and be unconstitutional. In my judgment we made a mistake on that case.

O'Connor: I suppose the court has had occasion to change its view on certain issues over a period of years. Do you see any on the horizon that you think the court might well reexamine as things go on?
Well, you know, Sandra, I dissented in a lot of cases, and I'd like [the court] to reexamine them all [laughs]. I don't expect them to, but I think they made a serious mistake in the [Citizens United] campaign-finance case, in which they overruled the portion of an opinion you and I jointly authored [on the McCain-Feingold campaign-finance law]. And I think you might share my view.

O'Connor: I notice that myself, and when I am asked about it, I often say, "Well, the court overruled part of what I wrote." And leave it there. It is a source of concern today, the extent of campaign contributions and whether corporations and unions must be held to the [same] standard as an individual. These are tough issues for the nation and the court.

O'Connor: It appears, looking at the last election, our nation has become increasingly polarized. Has the role of the court changed along with that polarization, or does the court go on as before?
I have a great deal of confidence in the ability of the court to continue to do the best that it can with the difficult issues that come before it ... There is a lot of polarization out there, and one of the reasons for it is all the gerrymandering that is permitted now, that I used to write against ... I was on the losing side many, many times.

O'Connor: Now, what's the biggest change you've seen at the court since you went on it? Has the arrival of women been a significant change?
Stevens: Well, it has, but you know ... I don't think it really matters whether you're a man or a woman on the court. I think it's healthy, of course, that there should be women on the court, but I don't think the fact that you're a woman is the reason you're a great justice. You're a great justice because of qualities that are unrelated to your gender.

Newsweek: How do you feel about that, Justice O'Connor?
I've always said that at the end of the day, on a legal issue, I think a wise old woman and a wise old man are going to reach the same conclusion. So I agree with John that probably in outcomes it's not critical. But in terms of having the American people look at the court and think of it as being fair and appropriate for our nation, it helps to have women, plural, on the court.

Stevens: I think that's dead right. I agree with that completely.

O'Connor: And I was so stunned recently when I sat in the courtroom, and saw a woman on the far right end of the bench, one on the far left end, and one near the middle. That was pretty amazing.

Newsweek: Do either of you ever feel a sense of insecurity? Was there ever a moment when you thought, "Gee, I don't know if I belong here"?
I honestly didn't. Well, I mean, lots of times I had a lot of difficulty deciding what to do.

Newsweek: Never moments of self-doubt, though? You felt confident that you were the best person, or among the best people to be making these decisions?
I never felt that. But at the same time I didn't sit around agonizing over whether I was the best person to be doing it. It was my job, and given the job, I wanted to do the best I could.
Stevens: That's exactly right. It's your job. You're working at it the best you can.

This interview was moderated by NEWSWEEK's Jeffrey Bartholet.