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His Seat’s Still Warm! Thoughts On Justice Stevens

2010 April 13

Jacqueline holds a B.A. in American Studies from Bard College and is an avid reader of thick (and occasionally dull) history books and Supreme Court opinions.  Jacqueline is currently applying for law school and spare time is spent looking for employment, knitting, cooking, and enjoying the scene in Portland Maine.

So in case you haven’t heard, Supreme Court Justice John Paul Stevens is retiring, and every time a Supreme Court Justice retires, the whole political population of D.C. gets its knickers in a twist. And although the flurry of political posturing and rabid media hype is a bit ridiculous, it is also kind of understandable, because the Supreme Court is called Supreme for a reason. The Justices of the Supreme Court are the people who make the major, constitutional decisions about our laws. They are people who protect your right to tell someone to go fuck themselves and tell you why you can’t say that on T.V. They are the people who upheld the laws that made miscegenation illegal, and they are the people who then overturned those laws in 1967.

Most of the news pieces being written on Justice Stevens briefly review his nomination, years of civil service, and then quickly move on to who will replace him. And while who will replace Justice Stevens is very important, what should not be overlooked is the important role Justice Stevens has played as the elder statesman of the Court, a leader of progressive ideology, and a sincere, thinking, inquisitive member of the Court.

I’m sure you all remember the to-do over the nomination and confirmation of Justice Sotomayor last summer, and battery of questions and abuse that she was put through. But in 1975, when Justice John Paul Stevens was nominated by President Gerald Ford, there was no wall of cameras and mics, as the nomination and confirmation process was not televised. Justice Stevens was the last Supreme Court Justice whose nomination and confirmation process was not televised. Justice Stevens is a life-long Republican from the Midwest, and he came off as affable, smart, and reserved. During his confirmation, Justice Stevens was never asked about abortion—even though Roe v. Wade was decided only two years before. Justice Stevens’ backers thought they were getting a conservative, party-line Republican, but the longer Steven served on the court, his independent mind, compassion, and quiet, masterly effectiveness—rather than his political affiliations and beliefs—were what shone through. And as the Court grew more conservative over the years, Justice Stevens became the unlikely leader of the liberal wing of the Supreme Court, and one of its longest serving members.

But what makes Justice Stevens a truly admirable jurist is that he is not an adherent to the legal theory of “originalism”, which holds that the constitution should be interpreted based on how the Framers would have interpreted it, making the constitution a “dead” document, and not a “living” —and thus a dynamic—document. This is an important legal distinction because if the Constitution was in fact “dead”, Native Americans, African Americans, and women would have no—or very limited—rights. And that would be just the tip of the iceberg.

The original Constitution is an amazing document, and the laws written there have given us great guidance in building this country and this society, but it is also as fallible as those who wrote it. The Supreme Court is the voice of the Constitution, they safeguard some of our most treasured values and rights, and the legal decisions they make affect all of us. Justice Stevens understands this, and in the cases of Bowers v. Hardwick (1986) and Lawrence v. Texas (2003), he spoke eloquently for the belief in a broad interpretation of liberty, and in the necessity of the law to change along with society while preserving the rights of the minority.

The case Bowers v. Hardwick came to the Supreme Court in 1986, in which the state of Georgia brought charges of sodomy (sodomy being illegal in Georgia at the time) upon a male couple (one half of whom was the respondent Hardwick) engaged in the act of sodomy. The Court upheld the Georgia law, and thus the act of sodomy held its firm place in the law of many states as an illegal act. But Justice Stevens dissented in Bowers v. Hardwick, arguing that the Georgia law was unconstitutional because the law was selectively enforced, namely enforced on homosexuals, but not on heterosexuals. Justice Stevens goes on to cite the precedents set by previous Court cases (Griswold v. Connecticut, Carey v. Population Services International, Eisenstadt v. Baird) that contributed to the creation of the legal right to privacy—privacy that was violated by the State of Georgia by attempting to regulate private sexual matters between two adult consenting individuals. Justice Stevens wrote, in his dissenting opinion in Bowers:

..the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack…individual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of “liberty” protected by [due process]. [Griswold]. Moreover, this protection extends to intimate choices by unmarried as well as married persons. [Casey; Eisenstadt].

Justice Stevens goes to further criticize the Georgia law, and specifically, its illegal application:

If the Georgia statute cannot be enforced as it is written – if the conduct it seeks to prohibit is a protected form of liberty for the vast majority of Georgia’s citizens – the State must assume the burden of justifying a selective application of its law. Either the persons to whom Georgia seeks to apply its statute do not have the same interest in “liberty” that others have, or there must be a reason why the State may be permitted to apply a generally applicable law to certain persons that it does not apply to others.

Justice Steven’s short and pointed dissent in Bowers v. Hardwick laid the groundwork for the reversal of sodomy laws in the landmark case Lawrence v. Texas (2003), in which Justice Stevens’ dissent in Bowers is quoted in the majority opinion, overturning the Bowers ruling, and thus making all sodomy laws illegal. This is only one of the many instances in which Justice Stevens demonstrated his mettle as a man who believed in protecting individual liberties and rights. More evidence of Justice Stevens’ sense of constitutionality is revealed in a private memo to Justice Blackmun (which was released with Justice Blackmun’s papers after his death) in which he said “Traditions — especially traditions in the law — are as likely to codify the preferences of those in power as they are to reflect necessity or proven wisdom.” Justice Stevens confirmed this belief with action, one example being the cases of Bowers and Lawrence. Justice Stevens understood the power of the majority over the minority, and recognized that majority belief or opinion is not reason enough to limit or restrict the rights and liberties of the minority—which echoes the writings of John Stuart Mill, who in his essay On Liberty stated

Protection, therefore, against the tyranny of the magistrate is not enough: there needs protections also against the tyranny of the prevailing opinion and feeling; against the tendency of society to impose, by other means than civil penalties, its own ideas and practices as rules of conduct on those who dissent from them; to fetter the development, and if possible, prevent the formation, of any individuality not in harmony with its ways, and compels all characters to fashion themselves upon the model of its own.

It is Justice Steven’s ability to see the complexity and the fallibility of the law that made him such a valuable member of the Court. Using the cases of Bowers and Lawrence as just one of many examples, you can see how the Court’s opinions changed and shifted over the time Justice Stevens was a member, and Justice Stevens played a major—if mostly a behind the scenes role—on the Supreme Court of the United States.

But it is unlikely that whoever replaces Justice Stevens will be like him. Because the process of nominating and confirming all judges—particularly Federal and Supreme Court Justices—has become increasingly politicized, we end up with Justices with no judicial record (or any record at all) of their positions on pressing constitutional issues, which often also tend to be political dynamite. Judges (well, those with ambitions beyond their current positions) are forced to be purposefully vague in their rulings and writings, because the confirmation process has become so politicized that if a Judge takes a stand on anything that could be controversial (like one’s position on abortion, or saying something about a “wise Latina”) it could so polarize the confirming body (Congress) that it could easily make the candidate unconfirmable. Had Justice Stevens been subject to the kind of deeply probing—and slightly ridiculous—confirmation process that Justice Sotomayor went through (and which Justice Stevens’ replacement will also have to submit to) he would never had made it onto the Supreme Court. But thankfully Justice Stevens did make it onto the Supreme Court, where he helped guide the Court to many landmark civil rights decisions, and wasn’t afraid to voice dissent in the face of a majority.

2 Responses
  1. Andrea Greco permalink
    April 13, 2010

    This is a lovely commemoration of Stevens. He is a true independent, and sadly, I think you’re right when you say that there is no way his successor will be like him.

    Mill’s quote, particularly “there needs protections also against the tyranny of the prevailing opinion and feeling,” makes a nice neat answer to people who would rail against “judicial activism.” As you point out, Supreme Court nominees are treated to a taste of political silliness when they go through their conformation hearings. Once they are on the bench, however, they must answer to no one and nothing except their own critical faculties. And it seems that, on some issues, it takes a panel of lifelong-appointed legal minds, people who are not beholden to any party nonsense, to point out inconsistencies that the legislative branch ignores due to concerns about getting re-elected.

  2. Jacqueline Moss permalink
    April 15, 2010

    Thanks Andi! I feel the same about my political representatives as I do about my Judges: I look first for an active and engaged mind, not political or religious ideology. That is why President Bush and those of similar ilk disgust me so much. They aren’t curious, they don’t care about learning or value thinking, and that ignorant, closed-minded, uninterested way of looking at the world is just as dangerous as any fundamentalist ideology. Why, in this country, do we look upon education and brains as elitist and ignorance and fundamentalism as “real Americans”? Being smart or educated doesn’t make someone a snob, but ignorance and a lack of curiosity does make one ignorant and uninformed.

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