John Paul Stevens, named to the Supreme Court by Gerald Ford and serving until Obama replaced him with Elena Kagan, has died at 99. He was the third-longest serving justice ever.
He eventually — near the end of his career — became known as a liberal of some sort. That's only because in the Rehnquist Court, especially from Shrub Bush's time on, and then the Roberts Court, the Overton Window of the Supreme Court shifted right a whole house from even the Burger Court and a whole neighborhood from the Warren Court.
At the time many Republicans bitched about the "apostasy" of David Souter, Stevens did not face complaints like that, though he did have a few murmurings. Indeed,
as Jeffrey Rosen wrote, he still considered himself a "judicial conservative" as late as 2007.
I don’t think of myself as a liberal at all.
Emphasis is in the original.
Indeed, a year AFTER that, he voted with a largely conservative majority to uphold a photo ID requirement on voting, in
Crawford vs Marion County, basically opening the doors for the Kris Kobachs of the world, and buying the reasoning behind such claims. That said, at Ballot-Access,
Richard Winger says he often voted in favor of third-party voting issues.
Per that shifting Overton Window, Rosen records Stevens as
saying:
"It is my firm conviction,” Justice John Paul
Stevens wrote in the case striking down race-based enrollment
policies in public schools, “that no Member of the Court that I joined in 1975
would have agreed with today’s decision.”
No doubt there.
Indeed, Stevens himself noted the Overton Window:
Including myself, every judge who’s been appointed to the
court since Lewis Powell has been more conservative than his or her
predecessor. Except maybe Justice Ginsburg. That’s bound to have an effect on
the court.
I see him as some version of a
Bob Dole Main Street type conservative. But not a liberal.
I otherwise encourage readers to read through the full Rosen piece. It goes beyond just the Overton Window to look how liberalism had changed since the Warren Court. Rosen doesn't use the word "neoliberal," but he does use words like "technocratic."
Even the most liberal justices today have little appetite
for the old approach.
Judicial liberalism, in other words, has largely become a
conservative project: an effort to preserve the legal status quo in the face of
efforts by a younger generation of conservatives to uproot the precedents of
the past 40 years.
Well put.
Stevens also, Rosen notes, was fairly generous on criminal rights. OTOH, he hated flag burning and supported it being declared unconstitutional non-speech.
Beyond his political stances, Stevens was idiosyncratic. For example, he tried to ground abortion rights in a freedom from religion interpretation of the First Amendment. I agree with such an interpretation, but without even having to reference prominent secularist AND prominent pro-lifer Nat Hentoff, could have told Stevens that was a no go.
But, he also was a hard worker. As Wiki notes, he wrote first drafts of opinions himself. Also, he took the first look at cert positions himself. Most justices liberal and conservative alike have their clerks do this.
And, this all said, thank doorknob he was not an originalist,
as it's a crock of shit. And, per Rosen, at least he's not one of the modern technocrat libruls, among whom
Breyer is the worst, and arguably to the right of where Stevens was on First Amendment issues.
Ditto Kagan.
That said, he had some other, also serious problems.
Like being a Cubs fan!
And, I say that not just as a Cardinals fan.
Since Stevens was born on Chicago's South Side, he was some sort of front-runner, and traitor to the White Sox. That too probably ties with him being not at all a liberal.
After all, as he defended himself because the White Sox kind of sucked when he was a kid, liberals are supposed to like the downtrodden.
Well, the Cubs pretty much sucked after 1945, too. So there.
