One Republican whom the Reagan White House didn’t hornswoggle was the late John Paul Stevens. In Linda Greenhouse’s obituary, I learned that Stevens understood with his usual alacrity how the Justice Department smothered the promise of the Fourteenth Amendment. Ed Meese he regarded with disdain. Greenhouse:
After Attorney General Edwin Meese III criticized a long series of Supreme Court precedents that had interpreted the Bill of Rights as binding not only on the federal government but on the states as well — a foundational premise of 20th-century constitutional law — Justice Stevens took him on directly. The attorney general, he said in a speech to the Federal Bar Association in Chicago in 1985, “overlooks the profound importance of the Civil War and the postwar amendments on the structure of our government.”
Exactly. John Roberts and His Furious Five have made no secret of their contempt for realizing the promise of the Fourteenth Amendment; if citizens lack power or access, the federal courts are beyond them. I’m surprised the conservative bloc members don’t hang photos of Stephen Field, Joseph Bradley, and Melville Fuller on their walls, or maybe they do after hours.
By the mid-1970s, the court had developed an elaborate grid for evaluating claims of unequal treatment at the hands of the government. Policies that distinguished among people based on their race were subject to “strict” judicial scrutiny and were almost never upheld. Policies that simply concerned economic interests were subject to minimal scrutiny and were upheld as long as they had a “rational basis.” Policies that treated men and women differently fell somewhere in between, subject to “heightened” judicial scrutiny and required to serve an “important governmental interest.”
Justice Stevens rejected all this. “There is only one Equal Protection Clause,” he declared in 1976, concurring in Craig v. Boren, an early sex discrimination case. “It requires every state to govern impartially.” A straightforward application of that principle was all a court needed, in his view, to decide an equal protection case.
Clarence Thomas, of course, applies straightforward application of principles: read the Constitution, boom, there’s your answer — the Constitution of 1787, that is, a sham anyway. Stevens was a justice who regarded the post-Civil War amendments as redresses, chances to expand individual liberties.