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 reported, "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, which were common after Stevens announced his retirement in April, are based on a highly selective concern about state power. A closer look at Justice 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 the drug war by whittling away at the Fourth Amendment's prohibition of "unreasonable searches and seizures." Yet Stevens has approved 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' First Amendment record 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 at election time.

Stevens' record on property rights, protected by the Fifth and 14th Amendments, is almost uniformly bad. In 2005 he wrote the notorious Kelo decision, which upheld the use of eminent domain to transfer property from one private owner to another in the name of economic development. And although he once agreed that the government owes property owners compensation for a "taking" when its regulations reduce or destroy their land's value, he later repudiated that principle.

Another constitutional provision 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 explicit 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. 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. 

Senior Editor Jacob Sullum ([e-mail]) is a nationally syndicated columnist. © Copyright 2010 by Creators Syndicate Inc.