The Emperor’s Old Robe: Justice John Paul Stevens

by Josie Wales

Despite praise as a civil libertarian and liberal advocate, Justice Stevens’ real friend was government.

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Justice John Paul Stevens, retiring before the United States Supreme Court’s fall term, has long been considered the leader of the liberal’s intellectual bloc on the Court.  While praise from the Left for Stevens will continue throughout the summer, the Obama administration has made it clear it plans to replace the Justice with a “like-minded” liberal.

Stevens penned the majority opinion in Hamdan v. Rumsfeld (2006), concerning the Bush Administration’s treatment of Guantanamo Bay detainees after 9/11.  He held that the administration’s conduct violated the Uniform Code of Military Justice and Common Article 3 of the Geneva Convention.  He was also influential in establishing the privilege of habeas corpus for suspected terrorists in Boumediene v. Bush (2008).  For his role in these cases, many liberals and civil libertarians have held Stevens in high regard.  In addition, Stevens joined the conservative bloc of the Court in Crawford v. Washington (2006), overturning years of bad law regarding the Confrontation Clause of the Sixth Amendment and providing bright-line protections against out-of-court statements used against the accused at trial.  With government intrusion and involvement already secured and guaranteed, Stevens frequently voted to scrutinize government procedure and broaden protections for the accused.

Stevens, however, was not so friendly to the cause of freedom and the protection of individuals from such interference.  Stevens was skeptical, sometimes fearful of individual rights, consistently deferring to government power and tolerating its expansion into private lives.

In Kyllo v. United States (2001), the nation’s highest court heard the issue of whether thermal imaging could be used to “search” homes without a warrant.  This police practice involved measuring and monitoring the heat radiation from private homes to find persons cultivating indoor marijuana.  The Court held that the use of thermal imaging to detect activity within a home constituted a search under the Fourth Amendment and required a warrant.  Even the ACLU filed an amicus brief in favor of the Court’s holding. Stevens dissented, arguing that there was no reasonable expectation to privacy, choosing to refer to the government’s behavior as “surveillance” instead of a “search.”  Had Stevens garnered an additional vote on the bench, this police “surveillance” would be law, reaching inside the private home at the whim of Big Brother.

Stevens again voted in favor of government expansion at the expense of individual rights, writing the majority opinion for the controversial Kelo v. City of New London (2005) case.  Kelo involved a plan by the local government to take private property and give it to another private entity for purposes of economic restoration.  It held that private property, taken by government for other private economic development, constituted “public use” under the Fifth Amendment.  The infamous case led President George W. Bush to issue an executive order limiting the decision’s effect on the federal government takings policy, and the majority of states to enact laws protecting state citizens from Kelo’s reach.

Perhaps most alarming was Stevens dissent in Texas v. Johnson (1989), where Stevens voted to uphold a ban on burning the United States flag.  As a World War II veteran, Justice Steven’s view of flag-burning as a deplorable act is understandable; his explanation for upholding a constitutional ban is not.  Stevens wrote that the case had an “intangible dimension” that made the Court’s usual First Amendment analysis inapplicable.  This “intangible dimension” apparently comes from the flag’s status as “a symbol of freedom, of equal opportunity, of religious tolerance, and of good will for other peoples who share our aspirations.” He concluded by writing, “The ideas of liberty and equality have been an irresistible force in motivating leaders like Patrick Henry, Susan B. Anthony, and Abraham Lincoln, schoolteachers like Nathan Hale and Booker T. Washington, the Philippine Scouts who fought at Bataan, and the soldiers who scaled the bluff at Omaha Beach. If those ideas are worth fighting for – and our history demonstrates that they are – it cannot be true that the flag that uniquely symbolizes their power is not itself worthy of protection from unnecessary desecration.”  Stevens’s strange logic can be summed up: The First Amendment must be curtailed in order to protect freedom, liberty, and equality; to save freedom, we must restrict it (in this case, imprison a flag-burner).

In the landmark Second Amendment case, D.C. v. Heller (2008), Stevens argued that the “right to bear arms” was not an individual right, but a collective right that was conditioned upon membership in a defined militia.  More shocking, Stevens made an analogous argument that the First Amendment, specifically the right to assemble, was merely a “collective right” because it could not be exercised alone.  Conceding it takes two to tango, the right to assemble belongs to the individual and is not conditioned on involvement in a specific assembly.  As pointed out by the majority opinion, penned by Justice Antonin Scalia, “The unamended Constitution and the Bill of Rights use the phrase ‘right of the people’ two other times [along with the Second Amendment], in the First Amendment’s Assembly-and-Petition Clause and in the Fourth Amendment’s Search-and-Seizure Clause. The Ninth Amendment uses very similar terminology (The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people). All three of these instances unambiguously refer to individual rights, not ”collective’ rights, or rights that may be exercised only through participation in some corporate body.”

More recently, in Citizens United v. Federal Election Commission (2010), the Court held that corporate spending on individual political candidate “electioneering communication” could not be limited under the First Amendment.  For advocates of individual rights, this decision was a breath of fresh air.  The First Amendment protects both the individual’s freedom of speech and right to assemble; therefore, it follows that the individual would have the same freedom of speech when assembled in an association; even if that association is in the corporate form.  Stevens saw his concerns with corporate influence in elections a more important issue than the individual’s freedom of speech and right to assemble.  Just as with flag-burning, Stevens’s own arbitrary concerns trumped the freedom of individuals.  Justice Scalia opined that Stevens’ dissent was “in splendid isolation from the text of the First Amendment.”

Justice Stevens, a member of the Court since 1975, displayed distrust for freedom and voted on the wrong side of many significant constitutional issues.  He willingly eroded individual rights in favor of intrusive government policy.  Stevens’ uneasiness with freedom and individual rights led him to substitute textually sound, constitutional arguments with “intangibles” and fearful hypotheticals involving individuals abusing their rights at the expense of others.  Justice Stevens decided to hang up his old, worn, black robe for the final time.  May his replacement, likely to have a long tenure on the bench, hold not the same trepidation regarding freedom, but wear the robe in protection of individual rights.


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Posted Apr 17th 2010 at 7:11 am in History, Justice/Legal, Politics | 145 Comments