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 2009â€™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.â€
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.