Near great because, while he has given some impassioned dissents, he has also issued a few lamentable opinions.
Stevens, who will retire this summer, dissented more than 600 times in his 34 years on the bench. He rose above his Republican roots, growing in wisdom to lead the court’s liberal bloc.
Stevens is a humanistic judge in an institution saddled with mossbacks utterly devoid of compassion. Those reactionaries are pro-corporation, pro-business, pro-prosecution, pro-government, pro-wealth, pro-discrimination, pro-pollution and pro-white.
Stevens was right to dissent in these major cases:
• He got apoplectic in an 88-page dissent denouncing the Five Horsemen of Reaction who blithely made corporations people and money speech. Stevens said of the 2010 decision in Citizens United: “While American democracy is imperfect, few outside the majority of this court would have thought its flaws included a dearth of corporate money in politics.”
• He dissented from the outrageous political decision in 2000 that gave the presidency to G.W. Bush. “The loser is perfectly clear,” he wrote. “It is the nation’s confidence in the judge as an impartial guardian of the rule of law.”
• He shook his head in disbelief in 2007 when the court, in effect, overturned Brown v. Board of Education, killing a Seattle school integration plan. The court had moved Right. He had not moved Left.
• Stevens dissented when the court allowed the Boy Scouts to bar gays. Calling the decision mind-boggling, Stevens said the court made discrimination law and homosexuals a symbol of inferiority.
• Stevens dissented from the court ruling in 2008 overturning a gun control law in the District of Columbia. He sarcastically noted that the majority “would have us believe that … the Framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons.”
• Stevens in the Snepp case (1981) saw through the White House subterfuge that national security was at stake in the CIA’s secrecy agreement with its agents. Stevens noted in his dissent that Snepp’s book about the fall of Saigon contained no classified information.
Writing for the majority, Stevens rejected in Rasul (2004) the notion that the president was above the law, that Bush could rule by executive authority. Stevens wrote for the majority in Hamdan (2006) that military commissions violated the Geneva Convention.
He joined the majority in Lawrence v. Texas (2003) overturning legislation barring sodomy, nullifying a horrible decision by the court. In that earlier ruling, (Hardwick) the court upheld a Georgia anti-sodomy law over Stevens’ dissent.
But Stevens was wrong in these major cases:
• Texas v. Johnson (1989). Stevens read from the bench, his face red and his eyes brimmed with tears. He said the flag was a symbol of everything the nation stands for. Because he was a Navy vet in World War II, he was unable to see the constitutional question: the right to burn the flag as symbolic protest speech.
• Stevens showed that he was a metaphorical Old Man in 1978 when he wrote the majority view upholding a broadcast ban on George Carlin’s “seven dirty words” monologue.
• Stevens had a failure of nerve in Baze (2008). He rightly said executions are “patently excessive and unusual punishment violative of the Eight Amendment.” But he gutlessly upheld lethal injection because of precedent.
• Stevens egregiously voted to uphold voter ID in an Indiana case (2008), declaring in a majority opinion that the law stopped voter fraud. Voting fraud attempts are almost nonexistent. The law keeps Democrats from the polls.
It was yet another political decision by an extremely political Supreme Court.
Chief Justice Roberts complained that the State of the Union speech had “degenerated to a political rally.” Roberts should know. He constantly injects right-wing politics into court rulings.
Holmes, often called the Great Dissenter, also had some outrageous opinions sprinkled among these great dissents.
Abrams: “We should be eternally vigilant against attempts to check the expression of opinions that we loathe”; Olmstead: “I think it a less evil that some criminals should escape than that the government (federal agents) should play an ignoble part”; and Lochner (dissenting from the court’s decision in 1905 to strike down a 10-hour day for bakers): “The Fourteenth Amendment does not enact Mr. Herbert Spencer’s ‘Social Statics’ ” (a reactionary screed).
On the down side, Holmes upheld Alabama racist laws, considered Eugene Debs a common criminal, confused dissent in wartime with disloyalty and, upholding sterilization, said “three generations of imbeciles are enough.”
Nevertheless, Stevens and Holmes rank among the 10 best justices in Supreme Court history. Stevens believed with Holmes that constitutional law must respond to the “felt necessities of the times.”
Jake Highton teaches journalism at the University of Nevada, Reno. He can be reached at firstname.lastname@example.org.