John Paul Stevens' Faint-Hearted Liberalism

The retired justice’s new memoir reveals an uneasy relationship with the Bill of Rights.

By the time he retired from the Supreme Court last year at the age of 90, Justice John Paul Stevens had become something of a hero to American liberals. The editorial board of The New York Times praised “his record of being on the side of fairness and justice,” while Washington Post columnist E.J. Dionne called Stevens’ retirement “an enormous loss for the country, and particularly for progressives.” The New Yorker’s Jeffrey Toobin wondered, “What will the Supreme Court be like without its liberal leader?”

Those accolades may have been heartfelt, but they only told part of the story. Yes, Stevens had drifted leftward on some hot-button issues since President Gerald Ford appointed him to the Court in 1975. The most prominent was the death penalty, which Stevens originally voted to reinstate in 1976’s Gregg v. Georgia but later concluded was unconstitutional. He also authored two major decisions restricting President George W. Bush’s sweeping attempts to expand executive power in the name of fighting terrorism.

But Stevens' jurisprudence led him in some very illiberal directions as well. Now, thanks to the publication of his new book, Five Chiefs: A Supreme Court Memoir, we have another opportunity to review Stevens’ record. What the evidence reveals is a deep uneasiness with several of the core protections spelled out in the Bill of Rights.

Consider his narrow interpretation of free speech. Stevens dissented in last year’s Citizens United v. F.E.C., where the majority struck down several government restrictions on political speech by corporations and labor unions. In contrast to Stevens, the American Civil Liberties Union applauded the Court’s ruling as a victory for free speech, as did famed First Amendment attorney Floyd Abrams, whose resume includes New York Times Co. v. United States (1971), where he represented the Gray Lady in her battle with the Nixon administration over the publication of the Pentagon Papers.

Stevens also took a constrained view of the First Amendment in his dissent in Texas v. Johnson (1989), in which the Court ruled that flag-burning is a constitutionally protected form of speech. That’s the case where Justice William Brennan famously said that the “bedrock principle underlying the First Amendment” is that “government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Stevens rejected that view, and he devotes four pages of his memoir to criticizing Brennan’s opinion.

Furthermore, as Stevens now informs us, had he not retired in 2010, he would have joined Justice Samuel Alito in dissenting from the Court’s 2011 decision in Snyder v. Phelps, which ruled 8-1 in favor of the Westboro Baptist Church’s right to protest outside of military funerals with placards reading “God Hates the USA,” “Thank God for 9/11,” and other offensive statements. As Chief Justice John Roberts correctly observed in his majority opinion, “such speech cannot be restricted simply because it is upsetting or arouses contempt.”

To his credit, Stevens does acknowledge a few instances where he now thinks he made a mistake. “I should have voted differently in the Texas case,” he writes of a pro-death penalty decision. “I regret that vote because experience has shown that the Texas statute played an important role in authorizing so many death sentences in that state.”

Yet when it comes to one of Stevens’ most controversial opinions, the eminent domain debacle known as Kelo v. City of New London (2005), Five Chiefs has nothing to say. That’s too bad, because if there’s any case that might help readers evaluate Stevens’ “record of being on the side of fairness and justice,” it’s Kelo.

At issue was the Pfizer corporation’s 1998 plan to build a giant research and development center in New London, Connecticut. As part of the deal, city officials agreed to clear out neighboring property owners via eminent domain, giving a private developer space to complement the Pfizer facility with a new hotel, office towers, and apartments. Despite the Fifth Amendment’s clear instruction that private property may only be taken by the government “for public use,” Stevens upheld the seizure because it was part of a “comprehensive redevelopment plan” that would provide “appreciable benefits to the community.”

Unsurprisingly, that’s not how things worked out. The project that was supposed to entice Pfizer was never built, and in November 2009 the company announced that it was closing down its facility and pulling out of New London entirely. As for the properties that were taken after Stevens gave his stamp of approval, they were never redeveloped and continue to stand empty today. In the aftermath of Hurricane Irene last August, New London officials encouraged city residents to use the once thriving neighborhood as a dump site for storm debris. And to top it all off, Connecticut Supreme Court Justice Richard N. Palmer, one of the four justices who voted against the property owners and thus directly precipitated the Supreme Court’s decision, has since apologized for his role in the sordid affair.

So that’s three major First Amendment cases where Stevens staked out a position to the far right of the ACLU and a Fifth Amendment case where he allowed the government to bulldoze a neighborhood for the benefit of a private developer working with a powerful corporation. To borrow a phrase from H.L. Mencken, “If this is Liberalism, then all I can say is that Liberalism is not what it was when I was young.”

Damon W. Root is a senior editor at Reason magazine.

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  • Fist of Etiquette||

    Stevens dissented in last year’s Citizens United v. F.E.C., where the majority struck down several government restrictions on political speech by corporations and labor unions.

    The ACLU may have cheered Citizens United, but modern liberals did not. Despite narratives to the contrary, the Left is not a champion of free speech.

  • Attack Watch||

    Liar! We shall add you to our list!

  • ||

    Despite narratives to the contrary, the Left is not a champion of free speech.

    I think you just exposed yourself to a law suit for defamation and libel from every left wing politician within the United States.

    ...oh shit...I just did the same thing!!

  • Fist of Etiquette||

    Like a double reverse class action or something.

  • Former Rep. Steve Driehaus (D)||

    I lost an election!!!

    GIVE ME MONEY!!!

    WHAAAAAAAAAAAAAAA!!!!!

  • ||

    "[Liberals] believe only in the liberty to envy, hate and loot the man who has [property]."

    -- H.L. Mencken

  • Paul||

    I can tell you right now that the ACLU internally was very torn on Citizens United.

  • Scruffy Nerfherder||

    There's a word for people like Stevens. I think it's authoritarian.

  • Scruffy Nerfherder||

    Or maybe it's asshole, I always get the two mixed up

  • ||

    They're interchangeable.

  • ||

    That is what I was gonna say. I am glad this douchebad is no longer on the court.

  • Id||

    In the aftermath of Hurricane Irene last August, New London officials encouraged city residents to use the once thriving neighborhood as a dump site for storm debris.

    Incredible.

  • Scruffy Nerfherder||

    It would have been a perfect opportunity to put up a sign that read "Future Home of Pfizer"

  • ||

    I love how liberals have thrown Kelo down the memory hole.

  • Scruffy Nerfherder||

    You're interpreting it wrong. To them it was just more evidence that corporations have bought government, not that government has too much power. The wrong people are in charge and government needs more people with good intentions.

  • ||

    Give them time and they will be claiming that the evil conservative Roberts court let corporations run rough shod over the citizens of New London. They really do lack all sense of shame.

  • robc||

    Give them time?

    They were doing it the week of the decision. See my post below.

  • AdamJ||

    It really is a travesty. The Supreme Court has gotten too smart for its own goddamn good. This is how it should have gone:
    "They're taking your shit from you and giving it to a private company? No fucking way. Get the fuck out of my court room New London, and if I ever see your face around here again..."

    Instead, I'm sure there was a 40 page opinion written on something that should take 3 sentences. On top of that, they got it wrong.

  • Conservatives||

    Right on! Mission Accomplished!

  • ||

    What are even talking about?

  • robc||

    No, they just dont "realize" who voted on which side.

    I actually had this conversation shortly after the decision.

    Them: Kelo sucks, stupid conservative justices.

    Me: Umm...the conservatives dissented.

    Them: oh, uh, yeah ....

  • Scruffy Nerfherder||

    OMFG. From the NYT comments, as a suggestion for a replacement.

    How about Al Gore???????????????

  • Scruffy Nerfherder||

    More suggestions:

    Obama should nominate Hillary Rodham Clinton. She has an unlimited capacity to fight for justice and the knowledge and intellect to uphold our constitution for the benefit of all our citizens.

  • Scruffy Nerfherder||

    And another:

    Here is a name: William Jefferson Clinton.

  • ||

    Heck, put me on the Court. I'm for liberty--it's in my name! Me or the daughter of some sharecroppers. From Alabama. She's for liberty, too. And already a judge!

  • ||

    Pro'L Dib, you were lobbying for The Office of Censor. But yes, I don't see why you couldn't be considered.

    Yep, Justice Pro'L Dib: Opening every session of the SCOTUS with The Litany Against Ugly.

    Though The Wise Latina and The Gremlin might take offense.

    I would also nominate RC Dean, since Ginsberg should be reaching her expiration date but soon.

  • anon||

    She really must just be waiting to see if Obama is getting a second term or not.

  • ||

    I'd prefer the Censorhood, but until that august office is created, I'd accept an appointment as a justice or maybe as a tribune of the people.

  • robc||

    Select me. Too many damn lawyers on the court, we need an engineer.

  • ||

    Select me. Too many damn lawyers on the court, we need an engineer.

    Since you are a man of faith in something greater than yourself, I could take that into consideration, robc.

    Not sure if I want to risk Hoovering or Cartering the SCOTUS though.

    I keed, I keed!

    (Interesting. "Hoovering" was accepted as a valid word by the spell checker. Margaret Hoover must loom large.)

  • ||

    Hoovering is what you yanks call Vacuuming.

  • ||

    President Vacuum? You Brits need to learn more of our history--there's no such person.

  • ||

    The Constitution doesn't require the justices to be lawyers. In fact, I don't think there are any requirements at all.

  • ||

    All of which shows that they want a politically based, not Constitution-based, judiciary.

  • ||

    Good article

  • Len||

    The truth is not one SC judge has any regard for the USC, or liberty. They are political appointees, and those doing the appointing are certainly not going to appoint someone that might stand in their way.

  • Len||

    I should add, it's really a tiresome game to play, the one where we act like the USC is in effect, or that any one of the federal branches really cares.

    And before any of the knee jerk responses come about libertarians shouldn't even care about the USC, if the USC was actually adhered to, the federal government would actually have almost no contact with us, as in the main it's enforcement powers have to do with state governments, and confined to it's limits there would also be almost tax impact. This means that our liberty would be greater as would our prosperity.

  • ||

    Since I'm on a pushing-maggots-down-flights-of stairs reverie, I'll gladly include Justice Stevens. He is beyond reproach and still has a face badly in need of a high velocity planting.

  • anon||

    No need, he'll die soon. I'll make sure that the day he dies becomes a personal holiday for the rest of my life.

  • Cloudbuster||

    "...Stevens staked out a position to the far right of the ACLU..."

    I object to the characterization of anti-freedom positions as "far right."

    The conservative right wing of the Republican party has a lot in common with libertarian thought, generally siding with the individual over the state.

  • anon||

    Only the far right wing "extremists."

    Most of the more moderate republicans really do only contend at the rate that government is growing, not the total size of it.

  • anon||

    See: Both Bush's, Newt Gingrich, Mitt Romney, Rick Perry, Jon Huntsman, et al.

  • ||

    It is time to stop labeling people of Stevens' political beliefs as "liberals". They are statists and nothing else.

  • Colonel_Angus||

    Scumbag.

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  • Eduard van Haalen||

    I am the Interior Minister of Nigeria. I would like to buy some of your goods. Please give me your bank account information so I can transfer funds to your account. Thank you.

  • ||

    Just want I like, a Supreme who is uncomfortable with the BOR. Makes sense to me - the people charged with interpreting the meaning of the document who don't approve of it in the first place.

  • Almanian||

    So Ex-Justice Stevens is an odious cunt stain.

    Yep - thanks for confirming that for everyone.

  • ||

    I knew Stevens was an asshole, but up to this point I didn't know exactly how much he confirmed my father's frequent saying: "scratch a liberal, find an autocrat."

    -jcr

  • There is no "we"||

    Regarding Citizens United and for-profit corporations:

    If a "liberal" majority said that monkeys, or bullfrogs, or trees, or rocks, had First Amendment rights, I suppose that would, in some sense, make said liberal majority more "pro-First-Amendment" than those opposed to such non-sensical extensions of free speech. This would not be a virtue.

    The opposition to Citizens United is not based on the notion that for-profit corporations could have "free speech rights" but should be denied those rights based on a crimped and partial appreciation for the First Amendment. Opposition is based on the understanding that for-profit corporations cannot have or exercise First Amendment rights in any meaningful sense. For-profit corporations are unnatural state-chartered constructs, legally mandated to act in the service of absolutely nothing except maximizing shareholder returns on investment. They have no authentic politically cognizable personhood -- less so than even a great ape or a dolphin. The only "free speech" a for-profit corporation can exercise is to transact campaign contributions in exchange for political favors. Bribery is, functionally, the only "free speech" of which a corporation is capable, by its very nature as constituted under the law.

    I do not understand these jerkoids who, out of one side of their mouth, rail against the supposed insidious partnership between government (Barney Frank!!!) and corporate lenders in creating the mortgage meltdown and then, out of the other side of their mouths, insist that the First Amendment obviously and inarguably mandates that government-chartered corporations should be able to dump secret, unlimited, undisclosed, anonymous sums of money on the very politicians who are supposed to resist their lemon-socialist supplications.

    Democrats are often stupid and inane. Republicans are even more often stupid and inane. Both parties manage to attact better than 50% of the vote in election after election.

    Libertarians are stuck below 4%. Always. Maybe it's the world. Maybe you're too good for it. But consider for a moment: maybe, just maybe, it's you after all. Maybe you really do make even less sense than the mainstream parties. Maybe your weird policy anomolies, like your cognitive dissonance over corporate welfare versus corporate "speech" makes you look even more stupid and inane than the two major parties.

  • ||

    Freedom of association times freedom of the press = Citizens United. It's simple, really, but the thumbsuckers on the left are opposed to anyone spending money on things they disapprove of, especially trying to convince others that said pink opinions are bogus.

  • AdamJ||

    Citizens United decision is not the Court giving rights to corporations as if they were people. It is all about the reality that the first amendment does not allow the government to prohibit political speech, no matter where it comes from. It's not granting a positive right to corporations, but a negative right on the government.

    Where this logic was for Kelo, I have no clue.

  • AdamJ||

    Plus the fact that every major news outlet is owned by a corporation (NBC=>GE=>Immelt=>White House), so should we ban all news? Maybe only Fox? Why should Immelt have a family of networks that can spew whatever political speech they want, but a couple of folks can't get together and make a movie about Hillary Clinton? Are you going to tell me next that the press/media doesn't affect outcomes of elections? When Time magazine comes out with odds for the president that don't even list Ron Paul? When major networks host debates and decide who to invite? When the NY Times and Wall St Journal editorial board consistently rail against the Republicans and Democrats? What is the press? When you realize you can't answer that question, you will realize why Citizens United was the correct decision (and why Obama was a total asshole for deriding the justices on national tv. what a child).

  • there is no "we"||

    The question is not what a corporation does as its business. The question is what it does with its profits. News corporations cover political news. Airlines fly around politicians. Railroads carry politicians on trains. Restaurants feed politicians food. None of this necessarily entails paying legalized bribes to politicians out of profits.

  • MJ||

    The issue in the Citizen's United case had nothing to do with cash donations to politicians. How can you rant against that decision when you ignore what it was really about? Do you have no shame?

  • there is no "we"||

    A corporation is not a First-Amendment association. It is a government charter. You can band together in an "association" with you fellow citizens without a government charter. You don't get the privilege of limited liability. You don't get the privilege of corporate governance.

    Corporations, as government charters, can be deemed limited to activities that are not "ultra vires." For-profit corporations are, by law, limited to maximizing shareholder profit. Funneling untaxed shareholder money to politicians should be permissibly deemed ultra vires.

  • Colonel_Angus||

    "For-profit corporations are unnatural state-chartered constructs"

    Corporations are formed by individual people. The state does not create corporations, it forces them to obtain approval to operate.

    "The only "free speech" a for-profit corporation can exercise is to transact campaign contributions in exchange for political favors."

    Individuals do not cede their rights to speech, even when they form a group such as a business. Political favors are entirely the predictable result of the powers allowed to the state in the first place. Take away the power of the state to interfere with the economy, and there will be no reason for interests to try to receive favors.

    "insidious partnership between government (Barney Frank!!!) and corporate lenders in creating the mortgage meltdown"

    Progressivism at work.

  • there is no "we"||

    If the people who form a corporation want to spend their profits on politicians, they should pay the corporate tax, get a dividend or a capital gain on what's left, pay income tax on that, then contribute to politicians with what is left over. They should not be able to use the corporation to dodge dividend taxes on what they want to give to politicians.

  • Colonel_Angus||

    God damn, you are full of ignorance. People should always be free to associate however they like, including forming businesses. Government charters are illegitimate abuses of power by government. Limited liability simply means that the people who invest capital in to a company, are not liable beyond the amount they have already invested for anything the company does. The operators, employees, and people who make actual decisions within the company (who sometimes are investors), can still be held criminally and civilly liable for their actions. Regular investors SHOULD NOT be held liable.

    "For-profit corporations are, by law, limited to maximizing shareholder profit."

    This is a problem with law, not with businesses. These laws force businesses to focus on short term returns. Businesses should be free to utilize their invested capital in any manner. People are free not to invest in them if they don't like the decisions.

    "they should pay the corporate tax, get a dividend or a capital gain on what's left, pay income tax on that, then contribute to politicians with what is left over"

    Corporate taxation is double taxation. Only individual income should be taxed.

  • There is no "we"||

    You are not arguing my ignorance. You are arguing your own dissatisfaction with the status quo. Take up your grievance with the writers of the current laws, and save your personal insults for somebody else.

  • Colonel_Angus||

    Your ignorance is your preference for central planning, paternalism, and general restrictions on individual liberty. People like you built the status quo.

  • ||

    You're applying way too much significance to the use of the term "corporation." Very few people are concerned with the impact that the legal definition of the term has on the decision, if any. From a property rights perspective, the government has no authority to prevent a corporation from spending money in any way it sees fit, because while ownership of that money may be somewhat ambiguous it certainly does not belong to the government.

    In addition, the consequences of corporate campaign contributions are irrelevant to the question of constitutionality. Free speech or not, the federal government has no constitutional authority to regulate campaign contributions.

    BTW, Citizens United is a nonprofit 501(c), which invalidates your for-profit based argument.

  • there is no "we"||

    Was the holding of the case limited to non-profits, eh? Didn't think so.

  • Thorbie||

    Great rundown of why Stevens is not the freedom fighter liberals portray him to be. If you read Supreme Court opinions, you'll see that the liberals and conservatives on the court could better be labeled as proponents of big government and proponents of the constitution respectively. While not every decision by the conservatives on the court is good, far more often than not, they protect the constitution, whereas the liberal decisions just expand government power.

  • BelowTheRim||

    "While not every decision by the conservatives on the court is good, far more often than not, they protect the constitution, whereas the liberal decisions just expand government power."

    I have to disagree in that you are letting bipartisanship OKA the 2-party system get in the way.

    Each SC decision is of its own nature and must be judged as its own. I have ready decisions by supposedly freedom centric justices such as Thomas and Scalia that drive home a restriction on government as well as ones that limit individual freedoms the constitution is supposed to protect.

    Each case is its own.

  • Colonel_Angus||

    All nine of them are all shit.

  • ||

    Stevens' reversal on the death penalty is not to his credit because his new argument "that the Texas statute played an important role in authorizing so many death sentences in that state" has nothing to do with the constitutionality of the death penalty. It is in fact further evidence that he was never qualified to be on the Supreme Court.

  • AdamJ||

    Right on to this!

    "I gave the state the power to murder its citizens, I never thought they'd use it!"

    what a joke.

  • Dried Fruits||

    That's clever, 'CVSing back your drupal site.' Thanks for this by the way, I'll be sure to be back for more.

  • oil expellers||

    Guess it's a little too late to send this article along to the HR Dept. or that manager to any good...

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