John Paul Stevens — RIP

For as along as I was alive, the Supreme Court was John Paul Stevens’ court. The justice with a devastating interlocutory style and one of the last to write the first draft of his own opinions well into his eighties, nominated by the most conservative American president since Calvin Coolidge, ended up well to Gerald Ford’s left by the time William Rehnquist replaced Warren Burger as chief justice; and very well to Antonin Scalia’s right after the latter replaced Rehnquist as associate justice, and Anthony Kennedy replaced Lewis Powell. Ronald Reagan nominated them all, and it’s amazing to think of Brett Kavanaugh and Neil Gorsuch as scalphunters.

Skeptical about changes that limited individual rights, Stevens wrote mighty majority and dissenting opinions that will take generations to chip away — but the Gorsuchs and Kavanaughs will start anyway. In Atkins v. Virginia he ruled that killing people with intellectual disabilities violates the Eighth Amendment’s stricture against cruel unusual punishment. He understood that the majority’s decision in Bush v. Gore undercut the legitimacy of the Court and called out the majority’s rather novel embrace of the Equal Protection Clause. In Hamdan v. Rumsfeld, he wrote that the Bush administration’s military tribunals violated, among other things, the Geneva Conventions. And Ford’s attorney general Edward Levi knew him as an anti-trust lawyer!

By all accounts he became a masterly senior associate justice, which meant he had the power to assign decisions strategically: for example, assigning Kennedy to write Lawrence v. Texas. Because he stood for the Rule of Law, for better or worse, his principles led him to Clinton v. Jones, in which the majority ruled that presidents aren’t immune from civil litigation. Maybe I’ll read a defense of Kelo v. City of New London; someone link it to me. The only time in thirty-five years in which a major decision looked muzzy was Texas v. Johnson, where he stood in the minority against Scalia (!) excoriating flag burning.

Toward the end of his life he moved further left, further into wisdom: calling for the repeal of the Second Amendment, demanding that the Senate move forward the nomination of Merrick Garland, wrinkling his nose at the nomination of Brett Kavanaugh. He dissented in Bowers v. Harwick and was in the majority in  Lawrence v. Texas; I wish he’d written the majority opinion locating the right to gay marriage in the Fourteenth Amendment more solidly than Kennedy’s gaseous appeals to Human Dignity that delight NPR listeners. He wrote two beautiful dissents, i.e. readable for the common person, in Keller and Citizens United; in the latter, he declared, emphatically, that corporations are not people, therefore the notion of awarding them free speech rights is specious at best. Finally, he became an open and vigorous opponent of the deat penalty, which he correctly saw as not only cruel and unusual punishment but cruel, period.

In short, this was a life in law that affirmed the promise of the Bill of Rights and with the strategic acumen to keep majorities intact. I am a freer man thanks to Stevens, one of the most influential politicians (yes) of my lifetime.

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