Q. What do you consider to be your most important Supreme Court opinion?
A. The case that people think is the most important is Bakke ((decided in 1978)), because it firmly established affirmative action. About six cases since have reiterated its basic elements. Bakke is now the law.
Q. What is the future of the right to abortion?
A. Let me just leave it with this: I joined Roe v. Wade, and I wrote the Akron case, which reaffirmed Roe v. Wade. I have had no occasion to consider whether I would change my views, and I have no reason to believe that I would.
Q. You have said you would vote against the death penalty as a legislator, yet on the court you voted to uphold it. Why?
A. It is perfectly clear, at least for me, that the death penalty is constitutional. The Fifth and 14th amendments only prevent the denial of life and liberty without due process of law. When Chief Justice Earl Warren was on this court, in an opinion called Trop v. Dulles, he recognized that capital punishment was not cruel and unusual punishment under the Eighth Amendment. But quite apart from what the Constitution may provide, if I were in a state legislature, I would vote against capital punishment. The U.S. is the only country among the Western democracies that still has it. I'm not sure that the taking of one life is justified by the taking of another. Also, contrary to what many people assume, capital punishment does not deter murder. There are about 20,000 murders committed in the U.S. each year, and that's been a fairly consistent figure. The U.S. permits unlimited sale and ownership of handguns, and the murder rate reflects that to some extent.
Q. As president of the American Bar Association in 1965, you said the liberal Warren Court had swung the pendulum "too far in favor of" criminal rights. For at least a decade, the court has become far more conservative on criminal rights, and yet crime is still rampant. Were you wrong?
A. Well, I've been wrong many times. I was not a judge in 1965, and I had never practiced criminal law. But it did seem to me at that time -- and perhaps without adequate study -- that there were good reasons for reforming the system.
Q. Is it fair to say that you subsequently reconsidered your position?
A. I think it is fair to say. For example, in one of the early opinions I wrote, the question was whether or not wiretaps could be conducted without a warrant at the request of the President. I wrote the opinion that held it was appropriate to require a warrant. But when I was practicing law, I made a speech indicating that the President ought to have the right to wiretap without a warrant. When you put on the black robe, the experience is sobering. It makes you more thoughtful.
Q. How secure is the right to privacy?
A. Basically, the right has been respected. It certainly should be. But when you consider that you can take a picture from a satellite and see a tennis ball on a tennis court, you recognize that today there's no such thing as the type of privacy that existed when the Founding Fathers wrote the Constitution.
Q. The Watergate-tapes decision was instrumental in forcing President Nixon to resign. You were appointed by him. What personal feelings did the case generate?