Supreme Court

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.

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  1. Stevens, The New York Times editorial board opined, has a “record of being on the side of fairness and justice.”

    Except for that minor little Kelo thing.

    1. And Raich.

    2. Let’s not forget that he was on the wrong side of Heller.

      1. and Texas v. Johnson

    3. And let’s not forget he was on the wrong side of the McCain-Feingold cases.

    4. and just about every other case he’s ever sat on

  2. If the definition of a conservative is ‘a formal liberal that was mugged’. Then, the definition of a liberal (a conservative accused of a crime) holds very true.

    1. If the definition of a conservative is ‘a formal liberal that was mugged’. Then, the definition of a liberal (a conservative accused of a crime) holds very true.


      Why would liberals be viewed as supporting appeasement of criminals?

      1. Personal responsibility?

  3. Why can’t there be a supreme court justice that is not completely awful in some area? Most of them seem to be quite good on some issues, but none really seems to get it.

    1. Because there is no President who is not completely awful in most areas.

      1. But couldn’t it just happen by mistake some time? I mean look at Souder, when he was nominated, people thought he would be a reliable conservative.

    2. Even a broken cuckoo clock is right twice a day.

    3. I’d settle for 8 more Clarence Thomases.

      1. Only a conservative posing as a libertarian or someone ignorant of Thomas’ entire record (especially on the rights of the accused) would say this. As a long-time fan of SIV I’m betting both here…

        1. So, it’s okay to use racist rhetoric when talking about Thomas, as some of your fellow liberals do?

          1. WTF? Is English your second or third language? I said nothing of the sort.

            Thomas should be condenmend on his record alone, which, on police matters, is deferential to a sad, and most “unlibertarian” (considering the police=the government) degree.

            But hey, don’t take my word. Ask someone like Balko: how is that libertarian Thomas on these issues?

            1. I clearly didn’t mention you, MNG. But some of your fellow travelers like to pull the Uncle Tom Card on Thomas.

  4. Congratulations Balko. Now I’m sick to my stomach.

    1. I thought you’d been around long enough to know that any Balko post should be read with a side of Pepto Bismol

    2. I should know better, but I still fall for it every time: “This will be the Balko article won’t leave me bereft of all hope for humanity! This is the one, I just know it.”


      1. Thing is, every now and then we get a: You know that string of depressing articles I wrote about ____? Well some people in power finally felt compelled to do something about it. And this time instead of reflexively defending the stupid thing they did before, they reversed course and fired/dropped charges/indicted ____.

  5. That picture screams pedophile.

  6. Pale Male Syndrome

    1. Racist. Skin color doesn’t matter anymore, stop being so 18th Century.

  7. Let’s make fun of the way he looks. That’s interesting and productive!

    1. Well what else are ya gonna do? It’s not like anyone is listening to us about appointing a SCOTUS justice who actually upholds the Constitution.

      1. Ron Paul is starting to actually look hopefull for 2012. He won the CPAC thing and came in 2nd in a recent straw poll. He might actually have a decent chance of winning the GOP nod.

        1. I think the best he can hope for is to be asked more than one question in the primary debates. But even that would be good to see.

        2. Yeah but Obama is still the one who will appoint Stevens’ successor, and God knows who else might retire before 2013 (Im lookin’ at you, Ruth).

        3. Hahahahahahahahaha!

          Seriously. Do you really think that republitards will actually allow him to get past the primaries?

          All I know is that until people get fed up with banging their heads against the wall (replacing democrats with republicans, republicans with democrats, rinse and repeat ad infinitum) we’re fucked.

        4. Oy. Ron Paul is not a libertarian. Ron Paul is not a libertarian. Ron Paul is not a libertarian.

          If we’re going to put our efforts behind a losing candidate, then can’t we please put them behind a losing LIBERTARIAN candidate? You know, like a real one?

  8. 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.

    Wouldn’t that be Solicitor General Elena Kagan?

  9. By the bye, it’s “habeas corpus” not “habeus corpus.” Habeas is a verb (second person singular present subjunctive active), not a noun.

    And, as an aside, I think the analysis on Gonzales v. Raich was a bit shallow. The legal issue was not “should the government let sick people have their medicine?” The central issue was “does the growing of marijuana for personal consumption constitute an act of interstate commerce that can be regulated by the federal government?” This was an opportunity to further reign in that monstrosity, Wickard v. Filburn, which started several years ago with United States v. Lopez. Instead, the court went with the status quo (including the turncoat Scalia, who was so enamored of prohibition that he abandoned logic and stare decisis vis-a-vis Lopez). The upshot of the Raich decision is that it further bolsters the power of the federal government, under the all-encompassing interstate commerce clause (yoked with the general welfare clause), to regulate every act and non-act in the nation. This, of course, will lead to the ultimate defeat of the lawsuits opposing Obamacare.

    1. From Thomas’ Raich dissent

      If the majority is to be taken seriously, the Federal Government may now regulate quilting bees, clothes drives, and potluck suppers throughout the 50 States. This makes a mockery of Madison’s assurance to the people of New York that the “powers delegated” to the Federal Government are “few and defined,” while those of the States are “numerous and indefinite.” The Federalist No. 45, at 313 (J. Madison).

      Moreover, even a Court interested more in the modern than the original understanding of the Constitution ought to resolve cases based on the meaning of words that are actually in the document. Congress is authorized to regulate “Commerce,” and respondents’ conduct does not qualify under any definition of that term.8 The majority’s opinion only illustrates the steady drift away from the text of the Commerce Clause. There is an inexorable expansion from “commerce,” ante, at 1, to “commercial” and “economic” activity, ante, at 20, and finally to all “production, distribution, and consumption” of goods or services for which there is an “established … interstate market,” ante, at 23. Federal power expands, but never contracts, with each new locution. The majority is not interpreting the Commerce Clause, but rewriting it.

      1. He doesn’t say much, most of the time, but there’s no doubt here that’s he’s utterly and completely correct.

      2. A fine moment of his.

        When you feel yourself feeling really warm and fuzzy, check out his dissent in Earls v. Bd. of Pottawattamie County. That’ll shock you sane.

        1. I believe Thomas wrote the lead opinion in that case, not the dissent. It upheld drug testing of students.

  10. Stevens’ problem is not that he is liberal or conservative. His judicial philosophy is centered around a search for justice and ‘rightness’. He firmly believes that “good public policy” is the same thing as “constitutional.

    His opinion happens to be shared by the vast majority of citizens. Just look at the response to Citizens… the attitude is clearly “It is bad public policy to allow corporations to influence elections, therefore restricting political speech by corporations is allowed by the constitution.” Obama has made it clear that “empathy” or “understanding the common man” is his core test for jurisprudence. Unfortunately, none of these powerful people seem to understand that down this path lies tyranny.

  11. I have no empathy. My core test for jurisprudence is found within myself. I just say “I am, therefore I am right”, and whatever follows must be good for you, because I am awesome man, really…

  12. “Unfortunately, none of these powerful people seem to understand that down this path lies tyranny.”

    Or they understand it very well.

  13. Pamela Harris plausibly argued that as the Court has moved rightward over the last quarter century

    WTF? Is she from Mars? Oh, I forgot, anything that furthers state power at the expense of the populace is, by definition, right wing.

  14. Seriously, can’t even bring yourself to mention Sony v Universal (Betamax), which Stevens wrote?

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