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.