Supreme Court

How Justice John Paul Stevens Shaped—and Misshaped—American Law

The retired Supreme Court justice has died at 99.

|

John Paul Stevens, the liberal justice who spent 35 years on the U.S. Supreme Court before retiring in 2010, has died at the age of 99.

Appointed by President Gerald Ford, Stevens played a central role in some of the biggest legal conflicts of the past four decades, from the clashes over gun control and eminent domain to the battles over free speech and medical marijuana. Unfortunately, he had a tendency to vote against the constitutional protections spelled out in the Bill of Rights.

Take the First Amendment. In Texas v. Johnson (1989), the Supreme Court held that burning the American flag in protest is a constitutionally protected form of free expression. The "bedrock principle underlying the First Amendment," declared the majority opinion of Justice William Brennan, is that "government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable."

Stevens disagreed. Outlawing "the public desecration of the flag," Stevens argued in dissent, amounts to little more than a "trivial burden on free expression." He maintained that a ban on flag-burning easily passed constitutional muster.

And that was not the only form of political expression that Stevens was willing to ban. In his 2011 book, Five Chiefs: A Supreme Court Memoir, Stevens wrote that if he had not retired in 2010, he would have gladly joined Justice Samuel Alito's lone dissent in Snyder v. Phelps, the case in which the Supreme Court upheld the right of Westboro Baptist Church members to stage noisy and offensive protests outside of military funerals. According to the 8-1 majority opinion of Chief Justice John Roberts, "such speech cannot be restricted simply because it is upsetting or arouses contempt."

Stevens, like Alito, favored a more censorial approach. "The hate speech during the funeral" was rightfully prohibited, Stevens wrote, because "the speakers intended to use their speech to cause severe harm to a grieving family during a funeral."

Stevens had an equally deficient view of the Second Amendment. Dissenting in District of Columbia v. Heller (2008), in which the Supreme Court recognized the Second Amendment as securing an individual right to keep and bear arms for self-defense, Stevens asserted that the amendment should offer no protection whatsoever for what he called the "right to possess and use guns for nonmilitary purposes like hunting." In other words, unlike most advocates of gun control, who typically concede that hunters should still have the constitutional right to own at least some weapons, Stevens' view of the Second Amendment did not even recognize that longstanding aspect of civilian gun possession.

Stevens' most controversial opinion is perhaps his 2005 ruling in Kelo v. City of New London, which allowed a municipal government to bulldoze a working-class neighborhood and then hand the land over to a private developer. The Fifth Amendment requires that any taking of private property by the government be for "public use." But Stevens' Kelo opinion rested on the more lenient requirement of a "public purpose."

In response to criticism from myself and others, Stevens later defended Kelo on the grounds that it "adhered to the doctrine of judicial restraint" and was rooted in "Justice Oliver Wendell Holmes' broad reading of the text of the Constitution—which allows the states the same broad discretion in making takings decisions that they possess when engaging in other forms of economic regulation."

Running a close second in controversy was Stevens' 2005 ruling in Gonzales v. Raich, which upheld the federal ban on medical marijuana even as applied to local medical marijuana patients whose use was perfectly legal under state law. The Controlled Substances Act "is a valid exercise of federal power," Stevens held, "even as applied to the troubling facts of this case."

Some Supreme Court justices serve for decades without ever really having any impact on the law. But that cannot be said about John Paul Stevens, who undeniably left his mark. His long, impressive record will be studied by judges, lawyers, scholars, and students for many years to come. Regrettably, that record includes a number of opinions that truly shortchanged the Bill of Rights.

NEXT: Bernie Sanders Thinks Medicare for All Could Cost $40 Trillion

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. […] Supreme Court Justice John Paul Stevens, who died yesterday at the age of 99, is routinely described as a “liberal champion,” “the outspoken […]

  2. God finally flushed that turd down the toilet.

  3. >>>He maintained that a ban on flag-burning easily passed constitutional muster.

    mho, gotta give vets a pass on their flag-burning opinions wasn’t he literally an intelligence officer in WWII?

    1. Military officers tend to lean Democrat and therefore Socialist.

      The giving orders goes to their heads.

      Very few military officers lead and rally subordinates and are respected by their men for their leadership ability. Most officers bark orders and confuse military duty to obey orders with subordinates respecting said officer for their leadership ability.

      1. fair enough I’m not military so I wouldn’t know from the inside.

      2. Having served in the US Army, loveconst… is wrong on pretty much all counts.

        Yes, there are some officers who confuse the ability to give orders with leadership. They are, thankfully, a minority. As with any population, however, the few bad apples get a lot more attention and visibility than the many good apples.

        I’ll also point out that the military has the best leadership training programs in existence anywhere. The junior officers who do not understand leadership either learn better or get counseled out. I contrast that to the several civilian businesses I’ve worked for (and many more that I consulted for) that have poor to non-existent leadership programs and where bad leaders stick around forever.

        About the only thing I’ll grant to loveconst…’s comment is that officers do tend to be less conservative than the troops they lead. As a group, however, they remain more conservative than the rest of the US population. There is no evidence that they “lean Democrat” at any statistically significant level and most definitely do not lean “Socialist”.

        1. loveconst… is wrong on pretty much all counts.

          I’m shocked.

        2. kewl. gracias.

        3. There is no evidence that they “lean Democrat” at any statistically significant level and most definitely do not lean “Socialist”.

          You need the lovecons translator app.

          For lovecons, “Socialist” means “anyone to the left of Ted Cruz”

        4. People dont join the US Army because they are the smartest.

          The military keeps in bad officers because like all government, there are always ways to dig in like ticks.

          I also want to say that most of the shitty politicians were military officers. McCain, JFK, George H Bush, George W Bush, Tulsi Gabbard, Webb….

          1. I’m stuck with the conclusion that either you served but had a bad officer or that you are basing your opinions on Hollywood. If the former, I’m sorry for you but your experience was not typical. (Unless you served during the time of McNamara’s hundred-thousand – in which case you experience was more typical and deeply to be regretted.) If you’re basing your opinions on Hollywood stereotypes though, I have no sympathy.

            Contrary to your opinion, those in the service tend to cluster at both ends of the bell curve. Yes, there are a few who stay on the public payroll because they couldn’t hold a job anywhere else. The rigors of the service tend to weed those people out. Some do “dig in like ticks” but those seemed to end up either on the GS side of the DoD or in TDA assignments if they stay in uniform. On the TOE side of the military, there are a lot who serve because they are called to it. The percentage of college graduates in the military is far higher than in the general population. The same is true for higher education degrees. There are also a far higher proportion of serious degrees – engineering, hard sciences, operations research, etc – than in the general population. Those people are not perfect but they are far from the dregs that you describe.

            Re your claim about former-military politicians, you are confusing cause and effect. Ask yourself why the subset that chose to go into politics did so. Then compare that subset to a sampling of politicians who never served – Bernie Sanders, Donald Trump, Hillary Clinton, Al Frank, Dennis Kucinich, Nancy Pelosi, Jim Traficant, Maxine Waters, etc. It’s politics that collects awful people, not the military that makes them so.

      3. Citation please? Otherwise, I’m going to imagine you haven’t met many military Officers. Or did you mean Chinese officers?

        1. I gave you the names of military officers that are/were Democrats politicians.

          It’s funny that YOU use the “imagine”. You clearly have not interacted with many military officers.

  4. […] Supreme Court Justice John Paul Stevens, who died yesterday at the age of 99, is routinely described as a “liberal champion,” […]

  5. John Paul Stevens is the one of the major reasons why I believe justices on the SCOTUS should be elected and not appointed.
    These asswipes should be held accountable to the public for their decisions, good or bad, by the people who pay their salaries just like any other politician.
    A lifetime appointment for any judge is too long and does not allow them to be held accountable for their actions.
    I openly wonder if the American public would be in favor of changing these rules or not.
    Hopefully, the are well informed enough to support such an idea.

    1. I believe justices on the SCOTUS should be elected and not appointed.

      Yeah, then liberty would be protected. LOL

    2. What makes you think electing justices would improve anything? I suppose you could compare states with appointed vs. elected judges and see if there is any big difference. I have no idea what you’d see there.

      I can see reasonable arguments for and against electing judges. I tend to come down on the side of appointments.

      And for the federal judiciary, it opens a whole constitutional can of worms. Currently there are no federal elections. Even for president, it’s states voting for electors, not a national election. So you’d need something like an electoral college for judges, or you need to start a whole new part of the federal government to run national elections.

      1. And I have no confidence that the American voter wants anything like what I’d call a reasonable judiciary. It will be like most elections with most people voting for the person who they think will benefit them personally the most.

    3. You want the people who voted for Bush, Obama and Trump who only could abuse us for 8 years, to vote for someone who, like Stephens, can abuse us for 30 years?

      Justice Ocasio-Cortez?
      Justice Avenati?
      Justice Mick Jagger?

      1. Jagger might make for a good judge. He understands personally how the tax man sucks so he’s got that going for him. I’d say he’d be pro liberty vs drug war.

        1. all his friends are junkies.

          1. Ah, so he’s a socialist…

    4. I might be down with a 10-12 year term limit but elections probably wouldn’t help. Confirmation hearings are bad enough and then you expand that to the general public through elections with 2 year campaigns every 4-8 years. Add on the fundraising. God the humanity.

    5. appointments should be for 10 years, not life, and could be renewed if the new president agrees and the judge is in good mental health.

  6. […] Supreme Court Justice John Paul Stevens, who died yesterday at the age of 99, is routinely described as a “liberal champion,” “the outspoken leader of […]

  7. Stevens’ most controversial opinion is perhaps his 2005 ruling in Kelo v. City of New London, which allowed a municipal government to bulldoze a working-class neighborhood and then hand the land over to a private developer. The Fifth Amendment requires that any taking of private property by the government be for “public use.” But Stevens’ Kelo opinion rested on the more lenient requirement of a “public purpose.”

    Actually Kelo is good.

    1. I believe trolls end up in the 8th circle of Hell with the alchemists, perjurers and counterfeits.

      1. Nothing wrong with alchemy.

  8. Only the good die young.

  9. “John Paul Stevens, the liberal justice who spent 35 years on the U.S. Supreme Court before retiring in 2010, has died at the age of 99”

    Is there somewhere worse he can go if he doesn’t meet hell’s strict moral end ethical guidelines?

  10. R.I.P. I’ll give Stevens credit for one thing. He retired from the bench before he died.

  11. More old Socialists die every day without new replacements.

    #MAGA

  12. I feel like this downplays some of the good decisions of Justice Stevens. Yeah, he was lousy on free speech and the First Amendment in general, the Second Amendment and the Fifth Amendment. He was however pretty decent on the 4th Amendment and criminal procedure. He wrote Apprendi and Gant and a couple of the Guantanamo military tribunal cases.

  13. Matt Ford wrote an article today in the New Republic praising Stevens stance on the 2nd Amendment in the Heller case. But based on grammatical reading of the 2nd Amendment, Stevens embarrassed himself.

    A “well regulated militia” was one of the reasons why our founders adopted the 2nd Amendment–likely the most important as America had no standing army or stockpiles of arms. But they would have granted the right to own & bear arms regardless. Many back then needed firearms for hunting, protection against wild animals & marauding Indians, etc. I think they put the “militia language” in because it was their foremost concern. In fact, a joint defense was probably the primary reason for the Union.

    Regardless of the stated reason for adopting the amendment, there is nothing in the amendment that limits ownership of firearms to participation in militias. The first clause of the 2nd Amendment places no condition to, or limitation on, the right of the people to keep and bear Arms.

  14. As always, the lefty sites never allow comments that might eviscerate them. Another article that popped up today had as a headline: “When John Paul Stevens Eviscerated Antonin Scalia”

    The answer of course is never. The author presumed that Scalia’s ruling on the 2A was in error. That is false. The 2A clearly guarantees the right of the people to form militias, which logically implies that to do so they MUST individually have the right to bear arms. Can’t do the first without the second – a no brainer for anyone but a lefty. But more importantly, the authors wrote extensively about what they meant – they meant to guarantee that We the People cannot be denied the right to posses the MEANS by which we might practice our god-given right as laid out in the Declaration – the right to “change or abolish” our government as we see fit. Can’t do that if gubmint has all the weapons.

    Only two types of people fail to understand the 2A – the mentally feeble, and the truly evil.

    Which brings us to Stevens. “Stevens asserted that the amendment should offer no protection whatsoever for what he called the “right to possess and use guns for nonmilitary purposes like hunting.”

    This is one of his most contemptible writings in his pathetic career. Given the FACT that the 2A is meant to guarantee us 24×7 rights to arms to oust a radical government, it doesn’t matter at all what other uses that tool might be useful for. It is a Right – period.

Please to post comments

Comments are closed.