Justice John Paul Stevens' Mixed Record on Civil Liberties

Stevens wasn't the civil libertarian he's made out to be, but his retirement will still leave the Court more deferential to government power.

Retiring Supreme Court Justice John Paul Stevens is being hailed as a champion of the accused. Stevens, The New York Times editorial board opined, has a "record of being on the side of fairness and justice." The Washington Post lauded that the jurist's "voice was consistently raised on behalf of those vulnerable to government excesses, especially those accused of or convicted of crimes." Writing at the Legal Times blog, Pamela Harris plausibly argued that as the Court has moved rightward over the last quarter century, Stevens has emerged as the justice "most often sympathetic to defendants' arguments, especially in criminal procedure cases."

But Stevens' record on defendants' rights is still rather mixed. The title of most pro-civil liberties justice on the current Court is a little like the title "Best Strip Bar in Utah." It speaks more to the lack of competition than to Stevens' merits.

Stevens has been most consistently skeptical of government power in the Supreme Court's series of post-September 11 habeas corpus cases, particularly Hamdan v. Rumsfeld and Rasul v. Bush. But on free speech, for example, Stevens wrote the majority opinion striking down the censorious 1998 Child Online Protection Act, yet voted with the dissent to uphold a Texas law prohibiting the desecration of the American flag.

In recent years Stevens has become the Court's only vocal opponent of the death penalty, concluding in 2008's Baze v. Rees that "state-sanctioned killing is . . . becoming more and more anachronistic." But he still voted in favor of death in that case, and though he has voted to limit capital punishment over the years (including the execution of minors and the mentally retarded), his most critical vote came shortly after he came on the Court, when he voted with the 7-2 majority to reinstate the death penalty in the 1976 series of cases collectively known as Gregg v. Georgia.

In dicta from the 2007 case Morse v. Frederick (more commonly known as the "Bong Hits 4 Jesus" case), Stevens became the first Supreme Court justice to explicitly question the wisdom of marijuana prohibition, writing in his dissent, "Surely our national experience with alcohol should make us wary of dampening speech suggesting—however inarticulately—that it would be better to tax and regulate marijuana than to persevere in a futile effort to ban its use entirely." But Stevens' fondness for overarching federal power compelled him to repeatedly uphold the validity of the Controlled Substances Act, the law authorizing federal drug prohibition.

Stevens wrote the majority opinion in Gonzales v. Raich, the notorious case that upheld the federal government's power to enforce its prohibition on medical marijuana, permitting federal agents to raid, arrest, prosecute, and imprison sick people who rely on the drug, even in states that have legalized the treatment. Stevens' may well be remembered as a defender of fairness and justice, but he couldn't bring himself to allow states to let private individuals grow a harmless plant in their own homes for personal treatment of sometimes terminal illness. The absurdity of that position was aptly (though unintentionally) illustrated in a subsequent Washington Post editorial, which argued that while the consequences of Raich—allowing violent federal raids on sick people to continue—were regrettable, the decision was necessary, and offered as an example the Court's later decision to decline to hear a case in which a federal appeals court upheld the Environmental Protection Agency's plan to prevent the construction of a hospital in order to protect a species of endangered cave-dwelling insects native only to Texas.

Stevens' record on the Fourth Amendment, while containing highlights, is also less pure than suggested by the praise he has received over the last few days. He did author the Court's opinion in 2009's Arizona v. Gant, which limited the scope with which police can search a suspect's car after making an arrest. And he did dissent in a 1984 case affirming the "open fields" doctrine, which allows the government to search open private property without a warrant. He also joined the dissent in Hudson v. Michigan (which argued that evidence should be thrown out when police violated the "knock and announce rule" in conducting searches of homes), and was on the pro-Fourth Amendment side in Indianapolis v. Edmond (ruling against police roadblocks that randomly check for illicit drugs) and Michigan v. Sitz (ruling in favor of police roadblocks that randomly check motorists for intoxication.) 

But Stevens also voted to allow customs agents to seize suspected drug mules until the suspects are observed having a bowel movement, and to allow police to search closed containers found during a warrantless search of a vehicle. In the 2001 case Kyllo v. The United States, Stevens wrote the dissent, arguing that police shouldn't need a warrant to use thermal imaging equipment to look through the walls of private homes in search of marijuana growing operations.

So if it's true that Stevens is currently the justice most friendly to the accused, that's only because the debate over criminal justice issues has shifted so dramatically during his tenure. When Stevens joined the court, he had Justice Thurgood Marshall and Justice William Brennan reliably to his left. As my colleague Jacob Sullum has convincingly argued, after Stevens, the justice most friendly to criminal defendants today may well be Antonin Scalia.

So even given Stevens' mixed record on criminal justice, it's almost certain that his replacement will move the Court in a direction more deferential to police and prosecutors. In every criminal justice case to come before the Court since President Barack Obama took office, the administration's Office of Solicitor General has filed a brief in favor of the law enforcement side. You could argue that when the case involves a challenge to federal law, the Office is obligated to defend the government. But even in cases involving state law, such as 2009's Alaska, District Attorney's Office v. Osborne, the administration filed briefs and gave oral arguments against the rights of the accused.

In Osbourne, for example, the solicitor general argued against the right to post-conviction DNA testing that could conclusively prove an inmate's innocence. In Melendez-Diaz v. Massachusetts, the administration argued that the Constitution's Confrontation Clause did not grant defendants the right to cross-examine forensic analysts. And Obama's solicitor general, Elena Kagan, is considered one of the leading candidates to replace Stevens.

Shortly after Obama nominated his previous pick for SCOTUS, the former prosecutor and now-Associate Justice Sonia Sotomayor, Vice President Joe Biden assured a gathering of law enforcement officials that Sotomayor "has your back." It was a remarkable thing for Biden to say about a nominee who, if confirmed, would preside over cases aiming to find the correct balance between the government's police power and our constitutional rights. More remarkable was how uncontroversial Biden's assurance was. It received very little media attention at all. It's a testament to the state of the debate over these issues: There isn't one. As I wrote after Sotomayor's confirmation hearings, there was almost no discussion at all of her positions on important Fourth, Fifth, Sixth, or Eighth Amendment issues. To the extent that there was, it tended to be Democrats posturing in favor of fewer rights for the accused.

Of the 11 names the Washington Post recently listed as possible replacements for Stevens, eight worked either as a local prosecutor, state attorney general, or U.S. attorney or Justice Department official. None, at least according to the Post synopses of their careers, spent significant time doing criminal defense work. On the current Court, just two of the nine justices have any criminal trial experience at all, and both served as prosecutors (Justices Samuel Alito and Sotomayor). The most likely path to becoming a Supreme Court justice is to clerk for a federal appeals judge, then work your way through government appointments or academia. The only real alternative is to work your way up local, state, and federal prosecutor positions. Which means the pool of potential Supreme Court nominees is generally going to be made up of people who are either detached from the real day-to-day goings of the criminal justice system, or will have been exposed to them only from the side of the state.

Balancing the Bill of Rights against the government's awesome police power is arguably the Supreme Court's most important task. It's regrettable that a justice with a record like Stevens' would be considered the Court's last bastion of protection for the rights of the accused. Not only is it accepted as a given that Stevens' replacement will be more deferential to government on these issues, the issues themselves won't even be part of the debate.

Radley Balko is a senior editor for Reason magazine.