Health-Care Law Has Precedent, Retired Justice Stevens Says

Retired Justice John Paul Stevens said a 2005 U.S. Supreme Court ruling involving medical marijuana provides legal support for President Barack Obama’s health-care law.

Stevens, now 91 and more than a year into retirement, said in an interview in Washington this week that he is skeptical about contentions that Congress lacked authority to pass the health-care measure, which requires Americans to either buy insurance or pay a penalty.

Stevens wrote the court’s opinion in the 2005 case, a 6-3 ruling that let the federal government ban marijuana even when the drug doesn’t cross state lines and is used only for medicinal purposes. As with health care, that case centered on Congress’s power to regulate interstate commerce.

“To the extent that the commerce clause is an issue in the case, it just seems to me very similar” to the medical marijuana dispute, said Stevens, who served on the court for 34 years. Stevens is holding interviews with reporters to promote his book, “Five Chiefs,” which describes his impressions of the last five chief justices and is scheduled to be released next week.

Stevens wore his trademark bow tie as he sat in his office at the court, which provides spaces for retired justices. The Chicago native’s chambers are adorned with sports memorabilia, including an autographed photo of basketball great Michael Jordan. Also on display is a scorecard from a 1932 World Series game Stevens attended, when Babe Ruth pointed toward the outfield seats before hitting a home run.

Retired Justice John Paul Stevens said in an interview in Washington this week that he is skeptical about contentions that Congress lacked authority to pass the health-care measure, which requires Americans to either buy insurance or pay a penalty. Photo: Dennis Brack/Bloomberg Close

Retired Justice John Paul Stevens said in an interview in Washington this week that he... Read More

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Retired Justice John Paul Stevens said in an interview in Washington this week that he is skeptical about contentions that Congress lacked authority to pass the health-care measure, which requires Americans to either buy insurance or pay a penalty. Photo: Dennis Brack/Bloomberg

Stepping Down

Stevens said he made the right decision to step down from the court even though he could have continued to function effectively. He said he began thinking about retirement after he had trouble reading a summary of his dissenting opinion in a campaign finance case last year. Stevens splits his time between Washington and Florida and said he plays tennis regularly despite a bad knee.

Even in retirement, Stevens said he hasn’t stopped reading opinions and thinking about legal cases. He said he wasn’t troubled by the way courts handled the case of Troy Davis, whose Sept. 21 execution in Georgia was the subject of worldwide demonstrations and questions about his guilt.

Stevens was among the justices who ordered a federal trial judge to reconsider whether Davis was the triggerman in the 1989 shooting death of a Savannah police officer. The judge reviewed the evidence, including recantations by witnesses who testified against Davis at trial, and concluded in a 172-page opinion that he was guilty.

“It’s my understanding that the trial judge went back and did a very thorough hearing and came up with findings that really had to be respected by an appellate court,” said Stevens, adding that he hadn’t read the opinion.

Replaced by Kagan

Stevens wrote in a 2008 opinion that he believed the death penalty to be unconstitutional, even while saying he would respect Supreme Court precedents that allowed capital punishment.

Stevens, whom Obama replaced with Justice Elena Kagan, said Senate confirmation hearings for Supreme Court nominees have become too much of a political event. His own 1975 confirmation hearing was the last not to be televised.

Stevens wrote in his book that he received no help from then- President Gerald Ford’s staff in preparing for the hearing. Stevens and his former law partner even had to hail their own taxi after leaving the session, he wrote.

“I would love to go back to the days when the nominee doesn’t need any coaching from the Department of Justice and the White House, and he just comes in and the senators ask him what they want to know and they get to the meat of things,” Stevens said in the interview. “I think it’s become much more of an exhibit or a spectacle.”

Health Care

The Obama administration this week signaled it will file a Supreme Court appeal on health care, saying it will forgo further appeals-court review in a lawsuit pressed by 26 states opposing the law. Stevens said he hadn’t read any briefs in the case.

The 2005 marijuana ruling will be a pivotal precedent when the justices consider the health-care law. In his opinion for the court then, Stevens pointed to a constitutional provision letting Congress enact laws “necessary and proper” for carrying out powers specifically mentioned in the Constitution.

The majority included Justices Antonin Scalia and Anthony Kennedy, both of whom had voted to restrict Congress’s commerce- clause power in earlier cases. Scalia didn’t adopt Stevens’s reasoning, instead providing his own analysis in a concurring opinion.

Stevens suggested Scalia might be willing to uphold the health-care law even if he disagrees with its substance.

“I would expect that the merits wouldn’t have the slightest impact on his analysis of the constitutional issue,” Stevens said. “I’m sure he’ll approach it as a judge should approach it.”

To contact the reporter on this story: Greg Stohr in Washington at gstohr@bloomberg.net.

To contact the editor responsible for this story: Mark Silva at msilva34@bloomberg.net.

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