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Justice Stevens, exiting stage right, uh left, uh, right

There’s been a lot of talk about Justice Stevens’ imminent departure from the Supreme Court, including some folks that seem to remember him as a champion of civil liberties.

I’ll admit that at one point, I felt quite strongly about Stevens, in a positive way. It was when he wrote this in the decision that shot down the horrible Communications Decency Act (which I fought hard against)

“As a matter of constitutional tradition, in the absence of evidence to the contrary, we presume that governmental regulation of the content of speech is more likely to interfere with the free exchange of ideas than to encourage it. The interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship.”— Justice John Paul Stevens, writing for the majority

But that’s only one moment in his career.

Radley Balko does a great job of showing just how far around the map that Justice Stevens traveled.

Stevens wrote the majority opinion striking down the censorious 1998 Child Online Protection Act, yet voted with the dissent to uphold a Texas law prohibiting the desecration of the American flag. […]

In dicta from the 2007 case Morse v. Frederick (more commonly known as the “Bong Hits 4 Jesus” case), Stevens became the first Supreme Court justice to explicitly question the wisdom of marijuana prohibition […]

Stevens wrote the majority opinion in Gonzales v. Raich, the notorious case that upheld the federal government’s power to enforce its prohibition on medical marijuana[…]

He did author the Court’s opinion in 2009’s Arizona v. Gant, which limited the scope with which police can search a suspect’s car after making an arrest. […]

In the 2001 case Kyllo v. The United States, Stevens wrote the dissent, arguing that police shouldn’t need a warrant to use thermal imaging equipment to look through the walls of private homes in search of marijuana growing operations.

All over the place.

The one Radley left out is the one that currently leaves a nasty taste in my mouth. And that’s Caballes v. Illinois, where Stevens wrote the majority opinion stating that a dog alerting on a car was sufficient cause for a search even in the absence of any other suspicion.

The kicker was this statement:

“A dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment.”

In other words, because the substance found was illegal, the decision to search was OK. Classic ends-justifies-the-means thinking and an open invitation for police to go fishing, as long as the dog they trained will cooperate with them.

You’d think after a certain number of years in the Supreme Court, he could have had a staff person explain the Fourth Amendment to him.

The sad part is that I unfortunately agree with Radley:

It’s regrettable that a justice with a record like Stevens’ would be considered the Court’s last bastion of protection for the rights of the accused. Not only is it accepted as a given that Stevens’ replacement will be more deferential to government on these issues, the issues themselves won’t even be part of the debate.

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9 comments to Justice Stevens, exiting stage right, uh left, uh, right

  • Shap

    I have to say that I do feel slightly optimistic that there will be questions asked of this nominee as to his/her feelings about the limits (if any) on the commerce clause as a result of the mandate in the health care bill. It is sad however that it takes recently passed legislation like the health care bill to spur debate about the limits of the commerce clause when it has already been violently raped by cases like Raich and Wickard.

  • Paul

    Not sorry to see Stevens go, myself. I think he kept a dartboard in his chambers to make his decisions. I saw little consistency in his rulings.

    I know this will earn me little love here, but I think Clarence Thomas is actually pretty good. His reasoning is consistent (although I don’t always agree), and he is willing to go against the grain. He voted against that awful Raich decision, and that has got to be worth some respect.

  • claygooding

    I quit paying attention to the Supreme court when they decided a dog sniffing out drugs was probable cause for a search,since I know that a dog can be trained to “alert” at a signal from his handler,which means the cops can search anywhere they want too,without probable cause.

  • ezrydn

    I’ve as much as given up on the Supreme Court since the powers that be think it’s ok to nominate people with NO judicial experience. It’s obviously some sort of “payback” and SCOTUS is NOT the place for that.

    As I understand it, they were put into position for life so as not to be swayed by the government, over their jobs. However, we keep seeing “payback” with no desire for experience.

    You don’t learn to become a judge at the top of the ladder. I always thought you had to prove your worth as a judge to head for SCOTUS. Stupid me.

  • divadab

    I agree with daygooding – the Raich decision exposed the corruption of the Supreme Court, to me anyway. The whole edifice of the federal govt is utterly corrupt. I suppose it may always have been so, but they’ve never had the technological abilities they have now to oppress.

    I think the only solution is to quit giving them money. If everyone reduced their income below the level to pay income tax, we’d starve the beast. And beast it is.

  • Windy

    The SCOTUS has been corrupt since FDR. Unfortunately, the Founders erred when they put the SCOTUS in charge of determining if a government action is Constitutional, since SCOTUS is part of government and will nearly always side with the other branches of the government in any question.

    divadab, most households cannot survive on income low enough to avoid the federal income tax. Ron Paul is right, we need to abolish the Fed and the income tax and IRS, and replace them with nothing! That would help reduce the size of the federal government. The other action that must be taken is for the States to nullify ALL unconstitutional laws coming from the federal government. This is poosible because the States, Constitutionally, have more power than the federal government does. So we must pressure our State legislators to take back their power.

    Prohibition 2.0 is unconstitutional on its face. No human being has a legitimate right to tell any adult human being what s/he may ingest for pleasure, sustenance, or medicine. And no person, group of people, or government has a legitimate power to arrest, fine or incarcerate any human being for what s/he ingests, period.

  • i quit getting excited about the possibility of true change coming from SCOTUS when, during his confirmation hearing, now Chief Justice Roberts responded to a question concerning gay marriage with the statement: “some states have seen fit to confer those rights on their citizens.”

    when the Chief Justice thinks that states confer rights (and worse, not one single person called attention to the statement) we have a major problem.

  • BruceM

    My worry is over the fact – yes fact – that Bushbama is going to appoint a right-wing, ex-prosecutor conservative republican devout christian to replace Stevens. Just like with Sotomayor. Democrats will get excited because the nominee will have a foreign-sounding name and/or a vagina, and they won’t think twice about the substance of the nominee because the Republicans will oppose him or her, as always (as long as the Republicans blindly oppose it, the Democrats will blindly support it even if both sides are factually incorrect).

    Get ready for the Court to take yet another step to the far right. Thanks Obama, you fucking lying asshole.