Standing Still as the Ground Shifted Right Under Him

Justice Stevens’s 35-Year Tenure on the Supreme Court

When liberal Justice William O. Douglas announced his retirement from the Supreme Court in 1975, President Gerald Ford was determined to move the bench in a different direction. As a congressman, President Ford supported an unsuccessful attempt to impeach Justice Douglas, noting Douglas’s “liberal opinions” as a source of Ford’s impassioned disagreement with the justice—if not sufficient ground to warrant impeachment on their own. When the opportunity arose for Ford to replace Douglas, the president’s advisors prepared a list of right-leaning candidates that included not just John Paul Stevens, but also ultraconservative future nominees Robert Bork and Antonin Scalia.

Ford eventually chose the center-right Judge Stevens in lieu of one of these more radical nominees, but the Stevens choice was nonetheless a clear break from his predecessor’s more progressive jurisprudence. Stevens was the son of a wealthy conservative hotel mogul from Chicago, and his early jurisprudence showed great sympathy toward the conservative culture warriors of the 1970s and early 1980s.

Stevens authored a 5-4 decision in Young v. American Mini Theatres during his first term on the Court, upholding a Detroit ordinance restricting the screening of adult films. Three years later, Stevens joined three of the Court’s conservatives in support of a far-reaching attack on race-conscious programs in the Court’s landmark affirmative action case Regents of the University of California v. Bakke. Had Stevens’s views been shared by one more of his colleagues, the Court would have adopted a sweeping ban on such programs.

Stevens developed a profound respect for existing precedent as he matured, which led him to later vote to uphold affirmative action programs so as not to disturb prior decisions that he had dissented from. Yet his respect for precedent should not be misunderstood as an abandonment of his right-of-center roots. One of Stevens’s most passionate opinions was his 1989 dissent in Texas v. Johnson, which parted ways with the majority’s holding that the First Amendment protects even wildly unpopular speech such as flag burning demonstrations.

More recently, Stevens wrote the Court’s egregious decision in Crawford v. Marion County Election Board, which upheld laws that require voters to present photo ID at the polls before they can vote. Stevens joined the Court’s five most conservative members to uphold voter ID laws even though there is literally no evidence that such laws do anything to address a real problem—Stevens’s opinion was only able to cite a single example of voter fraud at the polls since the mid 1800s—and even though there is significant evidence that these laws disenfranchise significant numbers of poor and elderly Americans.

The public perception of Justice Stevens as one of the Court’s liberals is inaccurate, and it is also a sign of just how far the Court has lurched to the right. Progressive presidents suffered a long drought of opportunities to appoint new justices since Justice Stevens joined the Court, while conservatives enjoyed a windfall. Only two vacancies opened on the nation’s highest court during the 12 years that Presidents Carter and Clinton occupied the White House, while Presidents Reagan and Bush I appointed five justices during their 12 years in office.

Conservative presidents have also been far more aggressive in appointing ideological judges and justices than their more progressive counterparts. Both of President Clinton’s nominees—Justices Ruth Bader Ginsburg and Stephen Breyer—were selected in close consultation with Republican Senator Orrin Hatch. Conversely, the first President Bush successfully appointed Justice Clarence Thomas to the Supreme Court, even though Thomas has since revealed his desire to move back to a pre-New Deal understanding of the Constitution that would strike down the federal minimum wage, the federal laws governing child labor, and the federal ban on whites-only lunch counters.

The result of the Court’s decades-long march to the far right is that even an old-guard conservative like Justice Stevens now wants no truck with his right-wing colleagues. During the first full term with conservative Chief Justice John Roberts and Justice Samuel Alito, the Court’s new conservative bloc audaciously claimed that the landmark Brown v. Board of Education decision forbids local school boards from integrating racially segregated schools. Justice Stevens reacted to this abomination of Brown with a clear statement of how far the Court has fallen: “The Court has changed significantly since…1968. It was then more faithful to Brown and more respectful of our precedent than it is today. It is my firm conviction that no Member of the Court that I joined in 1975 would have agreed with today’s decision.”

Stevens likewise opposed the Court’s recent decision allowing unlimited corporate spending to influence elections. He stood firm against President George W. Bush’s unconstitutional detention policies, even as his most conservative colleagues claimed that the president has limitless power to detain potentially innocent suspected terrorists without a trial or similar proceeding. And Stevens has consistently deferred to the Warren-era precedents protecting racial minorities and the rights of the accused, which the Court’s right-most members have worked so hard to undermine. Though a conservative, Stevens has no patience for radicalism.

The recent news of Justice Stevens’s retirement provides President Obama with a chance to name a new justice to the bench. Conservative reactionaries, who pine for another radical in the mold of Justice Thomas or Chief Justice Roberts, will no doubt attempt to paint Stevens as a liberal outlier, and will urge President Obama to nominate a “consensus” nominee well to his right. It is essential that the President ignore these cries. The federal judiciary moved deeply out of step with the American people during Stevens’s 35 years on the Court. President Obama must seize this opportunity to reverse this trend.

Ian Millhiser is a Policy Analyst with the Doing What Works project at the Center for American Progress.