Justice John Paul Stevens appears to me to be one of those old-timey conservatives, the kind whose judgment I may not agree with but whose opinions I can respect. It’s been awhile since I’ve seen such clear thinking on the part of anyone who calls themselves Republican.
Stevens served on the Supreme Court thirty-four years, from 1975-2010. He did an awful lot of deciding in all that time; what I notice most is that these decisions, or at least the ones he discusses in detail, are ones that made a big difference in the life of ordinary Americans. We all knew the Supreme Court was important, but how quickly the perception of partisanship has begun to erode their power.
Stevens names time periods in the court for the newest member because that individual alters the balance of power. He discusses important decisions each new justice has authored that might be considered to define that justice’s body of work and places his own assents or dissents beside them.
One of the earliest discussions he wades into is the abortion debate. Stevens was seated two years after Roe v. Wade and says at the time the decision had no appearance of being controversial.
Criticism of Roe became more widespread perhaps in part because opponents repeatedly make the incorrect argument that only a “right to privacy,” unmentioned in the Constitution, supported the holding. Correctly basing a woman’s right to have an abortion in "liberty" rather than “privacy" should undercut that criticism.Just so.
The 2003 case involving a challenge to the constitutionality of Pennsylvania’s 2002 congressional districting map, Vieth v. Jubelirer, is close to my heart. Hearing Stevens articulate why deciding partisan gerrymanders are not a heavy lift gives succor to like-minded in light of the devastation of a final refusal by SCOTUS to hear any more such cases.
Why is it any more difficult than deciding a racial gerrymander, he asks. Why can’t the Court stipulate every district boundary have a neutral justification? There are no lack of judicially manageable standards; there is a lack “judicial will to condemn even the most blatant violations of a state legislature’s fundamental duty to govern impartially.”
Stevens remained puzzled by his failure to convince his colleagues on the Court of his argument, an early echo of Justice Kagan’s distress this year that the blatant partisanship of the Court has broken out into the open and split the harmony with which they argued for so many years.
Stevens does not leave out decisions he wrote that were disliked by the country. Time never disguised the ugly truth that in Kelo v. The City of New London , a multinational pharmaceutical corporation looking around for a new development used the notion of eminent domain to take the homes of two long-time residents of New London, and then, within five years, closed up shop and left town. “…the Kelo majority opinion was rightly consistent with the Supreme Court’s precedent and the Constitution’s text and structure [but] Whether the decision represented sound policy is another matter.”
After the Citizen’s United decision with which he disagreed, Stevens tendered his resignation.
“…it is perfectly clear that if the identity of a speaker cannot provide the basis for regulating his (or its) speech, the majority’s rationale in Citizen’s United would protect not only the foreign shareholders of corporate donors to political campaigns but also foreign corporate donors themselves.”By hardly ever mentioning fellow Justice Sam Alito Stevens shows his animus. After this decision, Stevens describes Alito sitting in the audience during Obama’s State of the Union. When Obama mentioned that the decision allows foreign corporations to have a say in American elections, Stevens writes Alito “incorrectly” mouthed the words: “Not true.”
He revisits Alito’s record later, when he is wrapping up, to point out “especially striking” disagreements he had with him over interpretation of the Second Amendment. “Heller is unquestionably the most clearly incorrect decision that the Court announced during my tenure on the bench,” he says. [Alito] failed to appreciate the more limited relationship between gun ownership and liberty. Firearms, Stevens argues, “have a fundamentally ambivalent relationship to liberty.”
It probably wasn’t the Citizen’s United decision itself that brought the Stevens reign to an end; he may have had a small stroke after the pressures of that January decision and then playing a game a tennis. He was replaced by Elena Kagan, with whom he has professed to be delighted. Stevens didn’t so much change as a large portion of the country who once, and still do, call themselves Republicans moved to the right. Stevens never did and he was right where we needed him for thirty-four years.
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