Former Supreme Court Justice John Paul Stevens, who died yesterday at the age of 99, is routinely described as a “liberal champion,” “the outspoken leader of the court’s liberal wing,” and “the court’s most liberal justice.” Those quotes are all from Linda Greenhouse’s New York Times obituary, but they reflect a journalistic consensus.
In some respects, the “liberal” label is apt, at least as that descriptor is understood in contemporary American politics. But in several important ways, Stevens not only failed to defend but actively undermined principles that are conventionally viewed as liberal. His liberal credentials are even less impressive if you define the term in the classical sense, implying a general skepticism of government power and consistent support for civil liberties.
Stevens opposed the death penalty, supported affirmative action and abortion rights, and resisted attempts to try terrorism suspects before military tribunals or detain them indefinitely without charge or recourse to the federal courts. But in cases involving the Fourth and First amendments, he was far from a “liberal champion.”
Stevens played a significant role in whittling away at the Fourth Amendment’s ban on “unreasonable searches and seizures” to facilitate the war on drugs. He sided with the majority in decisions saying that a sniff by a drug-detecting dog is not a search, that police may search closed containers in cars and observe backyards from the air without a warrant, that a suspected drug smuggler can be detained until she defecates under supervision, and that a driver’s unusually long wait at a stop sign justifies stopping him and peering into his car. He dissented from a 2001 decision that said police need a warrant to conduct infrared surveillance of a home, and in 2005 he wrote a decision that allowed police to use drug-sniffing dogs during routine traffic stops.
Nor is Stevens’ record on freedom of speech especially liberal. He wrote both the 1978 decision that upheld regulation of broadcast indecency and the 1997 decision that overturned regulation of online indecency. He voted to uphold censorship of student newspapers and to overturn censorship of student banners. In 1989 and 1990 he dissented from decisions overturning state and federal bans on flag burning. In 2010 he angrily dissented from a decision that said people organized as corporations, including nonprofit interest groups, have a right to talk about politics, even at election time.
In cases involving property rights, protected by the Fifth and 14th Amendments, Stevens generally sided with the government. Although he once agreed that the government owes property owners compensation for a “taking” when its regulations reduce or destroy the value of their land, he later repudiated that principle. In 2005 he wrote the notorious decision in Kelo v. City of New London that upheld the use of eminent domain to transfer property from one private owner to another in the name of economic development.
While contemporary liberals tend not to get very worked up about violations of property rights, Kelo prompted dismay across the political spectrum, because it so clearly empowered wealthy, politically influential interests to literally bulldoze over the plans and expectations of ordinary people with less pull. Stevens nevertheless continued to defend that decision after leaving the Court, saying he had “a duty to give deference” to “the state courts’ evaluation of the particular development plan that gave rise to the litigation,” no matter how half-baked or thinly justified it might be.
Stevens also wrote the 2008 decision in Gonzales v. Raich, which held that the federal government’s power to regulate interstate commerce extends to the the tiniest trace of marijuana anywhere in the country, even if it is produced at home, never crosses state lines, and is used by a cancer patient for medical purposes authorized by state law. While federalism is usually perceived as a “conservative” issue, Stevens’ position in Raich can hardly be described as liberal in the contemporary or classical sense. Yet Greenhouse thinks his liberal tendencies are illustrated by his determination to resist “what had appeared to be the unstoppable states’-rights tilt of the Rehnquist court’s federalism revolution.”
In Kelo, Stevens approved the use of eminent domain for redevelopment because he thought the Supreme Court should not second-guess the decisions of state and local officials. In Raich, by contrast, he insisted that the federal government had the authority to override state policy. The unifying theme is not a preference for state autonomy or federal control; it is deference to the government, at whatever level, when its actions impinge on individual rights that Stevens did not view as important.
Speaking of which, Stevens dissented from the landmark 2008 decision that overturned the District of Columbia’s handgun ban as a violation of the right to armed self-defense. He thought the majority was mistaken in thinking that the Second Amendment “protects the right to possess and use guns for nonmilitary purposes like hunting and personal self-defense,” arguing that it only “secure[s] to the people a right to use and possess arms in conjunction with service in a well-regulated militia.”
In a 2018 New York Times op-ed piece, Stevens reiterated his criticism of District of Columbia v. Heller. “Overturning that decision via a constitutional amendment to get rid of the Second Amendment,” he said, “would be simple and would do more to weaken the N.R.A.’s ability to stymie legislative debate and block constructive gun control legislation than any other available option.” While many modern-day liberals join Stevens in treating the Second Amendment as a nullity, denying the basic human right of armed self-defense hardly seems consistent with liberal concerns about minorities and people of modest means, who tend to live in places where that right really matters.
When Stevens retired from the Court in 2010, a Washington Post editorial claimed “his voice was consistently raised on behalf of those vulnerable to government excesses.” That evaluation is hard to square with his record.
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