The top 7 things we're looking for from the upcoming Tuesday showdown.
I’m saddened that Justice John Paul Stevens is retiring from the Supreme Court, for both personal and political reasons.
Personally, because Stevens and my father were actually law partners in Chicago, and he’s played a huge role in my father’s life since then, too. His retirement reinforces the undeniable fact that they are both getting very old.
Politically, it’s a terrible blow since this moderate Republican became such a stalwart defender of individual rights, on issue after issue.
“Justice Stevens has consistently voted to protect a woman’s right to choose,” NARAL has noted.
In the 2000 Nebraska “partial-birth-abortion” case, Stevens stated: It is “impossible for me to understand how a State has any legitimate interest in requiring a doctor to follow any procedure other than the one that he or she reasonably believes will best protect the woman in her exercise of this constitutional liberty.”
In the Casey case, Stevens wrote: “Roe is an integral part of a correct understanding of both the concept of liberty and the basic equality of men and women.” Stevens also upheld gay rights, blasting holes in the arguments of his conservative colleagues, as Martha Nussbaum notes in her new book From Disgust to Humanity.
In the 1986 Bowers v. Hardwick sodomy case, Stevens wrote in dissent: “Every free citizen has the same interest in ‘liberty’ that the members of the majority share. From the standpoint of the individual, the homosexual and the heterosexual have the same interest in deciding how he will live his own life and, more narrowly, how he will conduct himself in his personal and voluntary associations with his companions. State intrusion into the private conduct of either is equally burdensome.”
At first a supporter of the death penalty, Stevens became an opponent. "The time for a dispassionate impartial comparison of the enormous costs that death penalty litigation imposes on society with the benefits that it produces has surely arrived," he wrote in 2008, and he strenuously objected to the practice of prosecutors who dismissed jurors who were opposed to the death penalty.
This year, he repudiated the doctrine of corporate personhood in a landmark dissent in the Citizens United case.
“In the context of election to public office, the distinction between corporate and human speakers is significant,” he argued. “Although they make enormous contributions to our society, corporations are not actually members of it. They cannot vote or run for office. Because they may be managed and controlled by nonresidents, their interests may conflict in fundamental respects with the interests of eligible voters. . . . Our lawmakers have a compelling constitutional basis, if not also a democratic duty, to take measures designed to guard against the potentially deleterious effects of corporate spending in local and national races.” Later, he added, witheringly: “Under the majority’s view, I suppose it may be a First Amendment problem that corporations are not permitted to vote, given that voting is, among other things, a form of speech.”
Stevens also invoked our Founders. “Unlike our colleagues, they had little trouble distinguishing corporations from human beings, and when they constitutionalized the right to free speech in the First Amendment, it was the free speech of individual Americans that they had in mind,” he wrote. “Thomas Jefferson famously fretted that corporations would subvert the Republic,” Stevens observed, and in a footnote, he provided the quotation from Jefferson from 1816: “I hope we shall . . . crush in [its] birth the aristocracy of our monied corporations.”
And perhaps above all, he stood as a bulwark against the Bush Administration’s assault on our civil liberties and its involvement in torture.
In the 2004 case Rumsfeld v. Padilla, Stevens warned: “At stake in the case is nothing less than the essence of a free society.” He added: “Unconstrained Executive detention for the purpose of investigating and preventing subversive activity is the hallmark of the Star Chamber.”
In the Hamdan case of 2006, Stevens, writing for the majority, insisted that detainees deserved the protection of Common Article 3 of the Geneva Conventions, which prohibits “violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture,” as well as “outrages upon personal dignity, in particular humiliating and degrading treatment.”
And in Boumediene v. Bush 2008, Stevens assigned the majority decision to Justice Anthony Kennedy and signed on to it. That decision required due process for detainees in Guantanamo and insisted that neither Congress nor the Executive has the authority to curtail it. “The test for determining the scope of the habeas corpus provision must not be subject to manipulation by those whose power it is designed to restrain.”
And though Stevens idiosyncratically voted not to protect flag burning as a form of speech, it is clear from his thirty-five years on the Supreme Court that he cared much more for what the flag is supposed to represent than for the flag itself.
Wrote Stevens in Hamdan: “If this Nation is to remain true to the ideals symbolized by its flag, it must not wield the tool of tyrants.”
Too often, this nation has wielded that tool, and at least four members of the Court have no problem with that.
But Stevens did, and that’s why his retirement is such a grievous loss.
Matthew Rothschild is the editor of The Progressive magazine.