Justice Stevens, who died yesterday at age 99, was the longest-lived justice in American history and the third-longest serving. A proud son of the Midwest, he lived an amazing American life that included witnessing Babe Ruth’s “called shot” and a valorous WWII stint in the Navy. I never had the chance to meet him but, as the personal accounts and eulogies now attest, he was a consummate gentleman and all class, a bow-tied throwback to an era to which we should all attitudinally aspire.
Stevens, nominated by President Ford in 1975 as the first new justice after Roe v. Wade, had a confirmation process that lasted all of 19 days and concluded with a 98-0 vote. (A different world, indeed.) From 1994 until his retirement in 2010, he was the senior associate justice, meaning the one who assigned opinions whenever the chief justice was on the other side. A moderate conservative when he was on the Seventh Circuit—perhaps the last of the Rockefeller Republicans—Stevens gradually moved left and ended up as the co-leader, with Justice Ruth Bader Ginsburg, of the Supreme Court’s liberal bloc.
In his nearly 35 years on the Court, Justice Stevens left a lasting legacy, with majority opinions in Chevron v. Natural Resources Defense Council (granting judicial deference to administrative agencies), Apprendi v. New Jersey (making sentencing guidelines non-binding), Hamdan v. Rumsfeld (striking down military commissions), Kelo v. City of New London (allowing the taking of private property to give to another private owner), and Massachusetts v. EPA (allowing states to sue the EPA over greenhouse gases), as well as famous dissents in Texas v. Johnson (would’ve allowed laws against flag burning), Bush v. Gore (would’ve allowed vote-counting to continue in the 2000 presidential election), D.C. v. Heller (would’ve allowed a complete ban on personal firearms), and Citizens United v. FEC (would’ve allowed certain campaign finance restrictions).
Many legal analyses of Stevens’s work in the last 24 hours have centered on the above cases, but I want to mention his disappointing view of expansive federal power. Especially when interpreting the scope of congressional authority to regulate interstate commerce, Stevens consistently sided with the government.
He dissented in United States v. Lopez (Gun-Free School Zones Act) and United States v. Morrison (Violence Against Women Act), cases from 1995 and 2000, respectively, that for the first time in decades found that Congress had exceeded its constitutional power under the commerce clause. Five years later, he authored Gonzales v. Raich, which allows the government to enforce the federal criminal ban on marijuana even against patients who grow and consume the plant for their own personal use consistent with state law.
These sorts of rulings, when combined with his opinions in Kelo, Johnson, Heller, and Citizens United, show that he really didn’t believe in either structural or rights-based protections for individual freedom, at least with the exception of presidential power and criminal procedure. His jurisprudence was difficult to characterize as a matter of conventional judicial methods and modes, but the results were what we’d now doubtlessly call progressive. In other words, he was a lawyer’s lawyer and a man’s man, a war hero and patriot, but no great friend of liberty.
