Reason.com
Unfaithful Friend of Liberty
John Paul Stevens’ spotty record as a defender of individual rights
As Supreme Court Justice John Paul Stevens "gradually became the leader of the court's liberal wing," The New York Times reports, "he became increasingly skeptical of claims of government power." According to a Washington Post editorial, "his voice was consistently raised on behalf of those vulnerable to government excesses."
Such descriptions of Stevens, which were common after he announced his retirement last week, are based on a highly selective concern about state power. A closer look at Stevens' record shows that he has been anything but consistent in his opposition to government excesses and that in some ways he has become less inclined to protect constitutional rights.
To his credit, Stevens has defended the rule of law in terrorism cases, and he often has resisted the Supreme Court's tendency to facilitate enforcement of the drug laws by whittling away at the Fourth Amendment's prohibition of "unreasonable searches and seizures." Yet Stevens has gone along with more than a few Fourth Amendment compromises, including 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.
Stevens' record on First Amendment issues is similarly spotty. 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. This year 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.
By contrast, Stevens' record on property rights, protected by the Fifth and 14th Amendments, is almost uniformly bad. 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 that upheld the use of eminent domain to transfer property from one private owner to another in the name of economic development.
Another part of the Constitution that Stevens does not like is the Second Amendment. He dissented from the 2008 decision that overturned the District of Columbia's handgun ban as a violation of the right to armed self-defense.
When it comes to reining in government excesses, the doctrine of enumerated powers, which says Congress needs specific constitutional authority for its legislation, is at least as important as the protection of enumerated rights. Yet Stevens has consistently opposed efforts to define the limits of the power to regulate interstate commerce, treating it as a blank check that Congress can fill in as it pleases. In 2005 he wrote a decision that said even a single marijuana plant grown by a patient in a state that allows medical use of the drug can be treated as interstate commerce.
In many of the cases where Stevens has sided with the government, he has been opposed by Antonin Scalia and/or Clarence Thomas, justices who have undeserved reputations as authoritarians hostile to civil liberties. The truth is that they, like Stevens, have often but not always defended the rights of "those vulnerable to government excesses." If progressives and conservatives paid attention to the whole Constitution, instead of just their favorite parts, they would be in a better position to evaluate both Stevens' legacy and the fitness of his successor.
Jacob Sullum is a senior editor at Reason and a nationally syndicated columnist.
© Copyright 2010 by Creators Syndicate Inc.
More Articles by Jacob Sullum
- Is That a Spy in Your Pocket?, Jacob Sullum, May 23, 2012
- Romney's Gay Marriage Challenge, Jacob Sullum, May 16, 2012
- Obama's Gay Marriage Equivocation, Jacob Sullum, May 9, 2012
Related Articles (Civil Liberties, Federalism, Guns, Privacy, Property Rights, Free Speech/First Amendment, Supreme Court, Constitutional Law, Eminent Domain, Campaign Finance, Drug War)
- The Lighter Side of Electronic Monitoring, Greg Beato, May 24, 2012
- Montana’s Misguided Attempt to Nullify Citizens United, Damon W. Root, May 23, 2012
- Is That a Spy in Your Pocket?, Jacob Sullum, May 23, 2012
- DC Capitol Hemp Shutting Down: Obama's War on Drugs to Blame, Joshua Swain, Kennedy & Nick Gillespie, May 21, 2012
- When Will Obama Evolve on the Drug War?, Sheldon Richman, May 16, 2012
Most Popular Stories
- 5 Classic Teen Sex-and-Drug Freakouts: Rainbow Parties, Butt-Chugging, And So Much More (By Which We Mean Less) (5.27)
- Government Beneficiaries and Other Fairy Tales (5.26)
- Are We Headed for a Fight with China? (5.28)
- Do Organic Consumers Shop Exclusively at the Jerk Store? (5.26)
- Lessons From the United Fruit Company (5.28)
Reason RUPE: Public Opinion Survey
- Reason-Rupe: Wisconsinites Favor Increasing Public Union Retirement Contributions to Address Budget Deficit (5.25)
- Reason-Rupe Poll Finds Support for Public Union Reforms (5.25)
- New Poll: Obama Leads Romney In Wisconsin, But Gary Johnson Could Impact the Race (5.24)
- Wisconsin Recall: Walker Leads Barrett 50-42 Among Likely Voters (5.24)
- Reason-Rupe Poll: Walker Leads Barrett 50-42, Obama Leads Romney 46-36 (5.24)
advertisements
Get Reason E-mail Updates!
Manage your Reason e-mail list subscriptionsSite comments/questions:
Media Inquiries and Reprint Permissions:
(310) 367-6109
Editorial & Production Offices:
3415 S. Sepulveda Blvd.
Suite 400
Los Angeles, CA 90034
(310) 391-2245
Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment or disable your ability to comment for any reason at any time.
Pingback| 4.14.10 @ 8:16AM
Justice Stevens: Unfaithful Friend of Liberty | Bad Newz links to this page. Here’s an excerpt:
MNG|4.14.10 @ 9:20AM|#
It's interesting, I'm betting this thread doesn't get many posts because whatever else one can say about Stevens he hasn't captured the publics attention like Scalia, Thomas or even Ginsburg. I imagine most Americans don't even know who in the world he is...
Zenmaster|4.14.10 @ 10:07AM|#
Actually, Radley Balko already scooped this story.
The Libertarian Guy|4.14.10 @ 10:14AM|#
Fuck Ginsburg.
Then again, MNG probably would, literally.
New World Dan|4.14.10 @ 10:23AM|#
What I have enjoyed about Justice Stevens is that he's never been afraid to be the lone outcast on an 8-1 decision. Even among the liberals, I have to give him a lot of credit for a distinctly independant mindset. Instead of bitching that he wasn't liberal enough on the 4th amendment, perhaps we should be focusing on what he did right.
|4.14.10 @ 11:50AM|#
Personally, I'd like more attention paid to Ring, Apprendi, Booker, Arizona v. Gant, Melendez-Diaz, etc., but the consistent Stevens-Souter-Ginsburg-Thomas-Scalia coalition just isn't interesting to people.
|4.14.10 @ 11:52AM|#
Also Blakely and Crawford.
|4.14.10 @ 12:49PM|#
Arbitrary stubbornness is hardly a virtue.
My take on his positions is that he was usually in favor of federal power over state or individual rights, but in state vs individual cases would occasionally rule for the individual.. as adjudicated by the federal SCOTUS of course.
Short answer : Good riddance.
|4.14.10 @ 1:25PM|#
Instead of bitching that he wasn't liberal enough on the 4th amendment, perhaps we should be focusing on what he did right.
Don't forget that he has little use for the 2d Amendment or the 1st (as shown by his M-F votes).
Sharla|4.14.10 @ 9:42AM|#
Stevens is just another old white guy. The sooner he is gone, the better.
|4.14.10 @ 10:09AM|#
Hear, hear.
|4.14.10 @ 12:26PM|#
Nice and racist that remark. Congratulations on being complete douche bags.
short, fat bastard|4.14.10 @ 1:11PM|#
ageist, racist, and sexist -- the trifecta!
|4.14.10 @ 10:07AM|#
MNG,
There is only so much attention people can pay to Justices. And Stevens' membership in the bow tie revolution hasn't helped him.
Xeones|4.14.10 @ 10:08AM|#
I imagine most Americans don't even know who in the world he is...
Psht. He was in Led Zeppelin, of course.
|4.14.10 @ 2:36PM|#
I believe you're thinking of Pope John Paul.
|4.14.10 @ 10:11AM|#
So the left will spew their hagiography for a guy considered to be on their side as he retires, and basically just make up shit about how was a good guy, just like the right does for their side. TEAM RED TEAM BLUE fuck you both.
|4.14.10 @ 10:13AM|#
I can think of a few folks in New London who have heard of this bow tied West Parish Hotel devotee.
|4.14.10 @ 10:14AM|#
All this column does is dispassionately recount the facts. Bo-ring. Where's the sizzle?
Rhywun|4.14.10 @ 11:29AM|#
Just his complicity in the War on Drugs is enough to ensure he'll get no respect from me.
WTF|4.14.10 @ 11:45AM|#
There should be an annual senility test for all members of the high court.
|4.14.10 @ 1:18PM|#
We just need to pass an amendment abolishing stare decicis.
|4.14.10 @ 11:47AM|#
But interestingly, not always. Justice Stevens has been a pretty consistent member of the Formalist Five-- Stevens, Souter, Ginsburg, Thomas, Scalia-- who have upheld the literal Constitution when other Pragmatist justices wanted to balance away rights in favor of other concerns.
See Ring, Apprendi, Booker, Arizona v. Gant, Melendez-Diaz, and others for a entire line of pro-civil liberties cases with this "unusual" lineup. A lineup that is entirely predictable in a certain kind of case, but gets called "unusual" every time.
Pingback| 4.14.10 @ 5:05PM
Unfaithful Friend of Liberty - Reason Magazine Help links to this page. Here’s an excerpt:
Pingback| 4.14.10 @ 6:37PM
How do I find the Secret ID of a pokemon in HG/SS? | The Secret Law of Attraction Rev links to this page. Here’s an excerpt:
Pingback| 4.14.10 @ 10:03PM
Unfaithful Friend of Liberty links to this page. Here’s an excerpt:
Pingback| 4.14.10 @ 10:16PM
Servers? dual core vs quad? | Dual Xeon Servers links to this page. Here’s an excerpt:
Pingback| 4.14.10 @ 11:28PM
Is a person still a vegetarian even if they pick the meat out of their food? · food links to this page. Here’s an excerpt:
Pingback| 4.15.10 @ 12:11AM
What are the Pros and Cons of niche marketing? links to this page. Here’s an excerpt:
Pingback| 4.15.10 @ 5:56AM
SOCBox Party Plan | links to this page. Here’s an excerpt:
Pingback| 4.15.10 @ 8:23AM
I need to make a web-site for a new small business…? | Webneur.com links to this page. Here’s an excerpt:
Pingback| 4.15.10 @ 9:15AM
first.. ? links to this page. Here’s an excerpt:
Pingback| 4.15.10 @ 5:10PM
Chilean businessman dead after detention in Cuba | Comprehensive Science listings, Re links to this page. Here’s an excerpt:
Pingback| 4.16.10 @ 3:27AM
sea world san diego_sea animals_sea world san antonio_sea temperature_sea world orlan links to this page. Here’s an excerpt:
Pingback| 4.17.10 @ 7:16AM
“does a person have to have a round-trip ticket to travel to china? | Travel Tips | links to this page. Here’s an excerpt:
Pingback| 4.17.10 @ 7:17AM
adventures_adventure trips_adventure trip_free online adventure games_adventure quest links to this page. Here’s an excerpt:
Pingback| 4.17.10 @ 7:45AM
adventures_adventure trips_adventure trip_free online adventure games_adventure quest links to this page. Here’s an excerpt:
Pingback| 4.17.10 @ 7:55AM
Which direction does the Airtrain at Newark airport travel? | Travel Tips | Great Tr links to this page. Here’s an excerpt:
Pingback| 4.17.10 @ 8:23AM
Is it safe to travel to Japan right now despite North Korean missile threats? | Trav links to this page. Here’s an excerpt:
Pingback| 4.17.10 @ 8:53AM
brest friend travel pillow? | Travel Tips | Great Travel Tips for Tourists ! links to this page. Here’s an excerpt:
Pingback| 4.17.10 @ 1:31PM
adventures_adventure trips_adventure trip_free online adventure games_adventure quest links to this page. Here’s an excerpt:
Pingback| 4.17.10 @ 1:58PM
adventures_adventure trips_adventure trip_free online adventure games_adventure quest links to this page. Here’s an excerpt:
Pingback| 4.20.10 @ 12:31AM
fitness links to this page. Here’s an excerpt:
Pingback| 4.29.10 @ 4:04AM
first.. ? links to this page. Here’s an excerpt:
Pingback| 4.30.10 @ 9:05PM
How can a get my male adult guinea pig a friend? links to this page. Here’s an excerpt:
p90x sale|6.25.10 @ 2:26AM|#
Thanks for sharing your article.!
christian louboutin platform p|7.23.10 @ 5:30AM|#
href="http://www.christianlouboutinsaless.com/">Christian Louboutin classic collection
christian louboutin platform p|7.23.10 @ 5:31AM|#
href="http://www.christianlouboutinsaless.com/christian-louboutin-pumps-c-14.html">Christian Louboutin Pumps nib black
leave grocery store|8.30.10 @ 10:06PM|#
See Ring, Apprendi, Booker, Arizona v. Gant, Melendez-Diaz, and others for a entire line of pro-civil liberties cases with this "unusual" lineup. A lineup that is entirely predictable in a certain kind of case, but gets called "unusual" every time.
amazon ghd|9.6.10 @ 11:30PM|#
I love your website!
amazon ghd|9.7.10 @ 2:02AM|#
I love your website!v
discountinchina|10.3.10 @ 1:52AM|#
Looking for great Wholesale Disney Toys Products for your business and want them at discounted wholesale prices? Look no further! Take a moment to browse Rhinomart's vast selection of Wholesale RC Toys
zicocn|10.21.10 @ 2:13AM|#
thank you! I like this news, I also have information to share, here is my message.
I think you will like the leading China wholesale electronics marketplaces, and you will like this blog
cutehellokitty|10.26.10 @ 6:42AM|#
Your post is pretty illuminating and practical,I completely agree with the above comment. Thanks for the sharing.
promdresses2010|10.26.10 @ 6:52AM|#
This is my first time i visit here. I found so many entertaining stuff in your blog, especially its discussion.
Pokemon|1.25.11 @ 12:36PM|#
Who is John Paul Stevens ?
ปลวก|2.24.11 @ 10:07PM|#
I'm betting this thread doesn't get many posts because whatever else one can say about Stevens he hasn't captured the publics attention like Scalia.
Best Kitchen Appliances|3.19.11 @ 10:30PM|#
Thanks for the post. It's always interesting to see what the guys up in the supreme court are up to.
jewelry|4.1.11 @ 10:25PM|#
Thank you, they look gorgeus. thanks 4 sharing
RAN|4.5.11 @ 3:38AM|#
I think you will like the leading China wholesale electronics marketplaces, and you will like this blog. | ran แรน |
tortia|5.1.11 @ 1:47AM|#
Gucci store at Hong Kong, selling Authentic Gucci online now by a discounted price. As we all know,to buy fake Gucci is not only vulgar but also illegal, visit our store as we will teach you how to spot the fake Gucci,moreover, we’d like to offer chances to buy authentic gucci,gucci tote,gucci boston,gucci sukey,gucci hobo,gucci sukey in an affordable price, to extend our business to a larger scale.
kadin|5.18.11 @ 11:51AM|#
help, i want to buy authentic gucci, Thanks for sharing. i like gucci
หนังใหม่ dvd|6.30.11 @ 2:53AM|#
Sweet blog! I found it while surfing around on Yahoo News. Do you have any tips on how to get listed in Yahoo News? I’ve been trying for a while but I never seem to get there! Thanks
Scarpe Nike|8.3.11 @ 4:27AM|#
is good
UGG Boots Cheap|11.15.11 @ 12:42AM|#
good
sd|1.25.12 @ 4:11AM|#
sd
sbobet|3.13.12 @ 9:06AM|#
You comment?