A mere four days ago, Justice John Paul Stevens, who served on the Supreme Court from 1975 to 2010, passed away at the age of 99. His nomination was prompted by the retirement of Justice William O. Douglas but also by the political atmosphere of the nation. President Gerald Ford wanted to pick someone who would be easily confirmed and had no ties with the Nixon Administration. Although nominated by Ford with the presumptive belief that he would be a justice that at least leaned right given his appeals court rulings, by the end of his career he would prove to be a staunchly liberal justice, adopting an “experience and justice” approach that emphasized values. At the start of his career, he voted to restore the death penalty in Gregg v. Georgia (1976) and he became known as the court’s leading critic of affirmative action with his vote in Regents of the University of California v. Bakke (1978), which struck down the use of racial quotas for public university admissions. However, he changed his mind on both issues later cases, and considered his vote on Gregg to be his one regret. Stevens also voted repeatedly to uphold abortion rights, siding with the majority to strengthen Roe v. Wade in Planned Parenthood v. Casey (1992). Perhaps his most significant opinion was in Chevron v. Natural Resources Defense Council (1984), a decision which gave government agencies far more power to interpret vague federal statutes and was a factor in the further growth of the “administrative state”. Stevens also authored the majority opinions in in Stevens’ most notable dissents were for the Supreme Court decisions District of Columbia v. Heller (2008) (gun prohibition violates 2nd Amendment), Texas v. Johnson (1989) (flag burning is protected speech under 1st Amendment), and Citizens United v. FEC (2010) (prohibition of independent political spending by corporations and unions violates First Amendment). The former he considered the single worst decision the Supreme Court came to during his tenure, as he interpreted United States v. Miller (1939), which ruled that a prohibition of the possession of a 12-gauge shotgun with a barrel less than 18 inches long was constitutional, as a good precedent for the constitutionality of any laws prohibiting civilian possession of firearms. His legal reasoning often involved looking at what he viewed as public needs as opposed to strict constitutional interpretations. For instance, on Citizens United, he wrote in his dissent about the need to prevent corruption and counter corporate interests. In an article he wrote on Heller, Stevens cited mass shootings as evidence for a need for strict gun laws. He also in retirement came out in favor of outright repealing the 2nd Amendment.
In many ways, Stevens took a deferential view to the power of the federal government which often meant a more restrictive view on rights, save for abortion, criminal defense, and civil rights. In 2000, Stevens strongly dissented from the verdict of Bush v. Gore, a case that ended the contested presidential election and produced a 5-4 result that seemed to mirror the ideological preferences of the justices rather than bear consistency with any of their legal philosophies. He wrote the majority opinion in Kelo v. City of New London (2005), which upheld the City of New London’s use of eminent domain powers for commercial development. This decision triggered an increase in the number of states prohibiting the use of eminent domain on behalf of commercial development except for blight from eight to forty-five. Stevens took a very expansive view of the powers of the federal government as well as the use of the Commerce Clause, which led him to uphold every case in which the federal government used the clause as justification and authored the majority opinion in Gonzales v. Raich (2005), which held the government could criminalize production and use of cannabis at home even when states permit it for medicinal purposes under the Commerce Clause. The following year, Stevens wrote one of his most notable majority opinions in Hamdan v. Rumsfeld (2006), which ruled the establishment of military commissions for Guantanamo detainees to be illegal.
Stevens was one of a long list of disappointments for conservatives in the Supreme Court: Potter Stewart proved a swing vote, Charles Whittaker proved unable to articulate a coherent judicial philosophy until after his time on the court, Harry Blackmun grew much more liberal overtime, and David Souter, whose nomination had been the subject of conservative advocacy and liberal opposition, proved everyone wrong about him. The Democrats had not had an unpleasant ideological surprise for their justices since Kennedy’s pick of Byron White, who dissented in Miranda v. Arizona (1967) and in Roe v. Wade (1973). However, Stevens still thought himself a conservative and viewed the Court as having shifted right as opposed to him shifting left, quite similar to Ronald Reagan’s line of “I didn’t leave the Democratic Party, the Democratic Party left me”. His thought in this regard was based in his view of stare decisis, that the Court should defer to precedent. His tenure on the court as well as that of David Souter’s motivated Republicans to become more ideologically cautious on who they would choose to vote for on the higher court. For instance, in 2005 Republicans indicated that they would not accept Bush’s initial pick of Harriet Miers for the Supreme Court as they feared she was underqualified and unpredictable, resulting in the nomination and confirmation of Samuel Alito, a federal judge with a proven conservative record. Yours truly certainly disagreed with much of Stevens’ decisions, particularly his deference to federal power and his reversals on the death penalty and affirmative action. However, there was one Republican we know of who wasn’t disappointed in him: Gerald Ford offered a positive appraisal of his tenure on the court in 2005, stating “For I am prepared to allow history’s judgment of my term in office to rest (if necessary, exclusively) on my nomination thirty years ago of John Paul Stevens to the U.S. Supreme Court” (Sorkin, 2010). Ford regarded his role as that of healing the nation from the impact of the Watergate scandal, and he regarded Stevens as a fundamental part of his approach. This brings me to a positive about Stevens, he did represent a different era of civility that has been drowned out by trends in public opinion and in our media.
McDonald, B.P. (2019, July 20). The Flaws of the Great Justice Stevens. The New York Times.
Sorkin, A. (2010, April 12). Gerald Ford’s Justice. The New Yorker.