A Liberal Legacy…

Posted April 13, 2010, at 6:02 p.m.

Now that Justice John Paul Stevens is retiring, we are suddenly finding out all sorts of things about this longest serving member of the Supreme Court.

All the others attended law school at Harvard or Yale; Justice Stevens attended University of Chicago and Northwestern University. And he is the only sitting justice who is a Protestant. That came from Adam Liptak, who covers the court for The New York Times. He quoted a couple of law professors as saying that religion’s role is reduced and that other sources of diversity have taken over on the court, including race, gender and ethnicity.

Linda Greenhouse, Mr. Liptak’s predecessor on the court beat, noted that in Mr. Stevens’ confirmation hearing 34 years ago not one senator asked about abortion, although the court had declared a woman’s right to choose it in Roe v. Wade two years earlier. No one knew what he thought about the issue, and the Democratic controlled Senate quickly approved Republican President Gerald R. Ford’s nominee 98-0. Starting in 1980, the Republican platform has usually demanded the nomination of judges who oppose abortion.

In the 34 years of his tenure, times have changed, the court has changed and Justice Stevens has changed. He entered the court as a conservative Republican. In his first year, he wrote opinions upholding state death penalty laws. Two years ago, after observing how it worked out in practice, he wrote that it was time to reconsider “the justification of the death penalty itself.”

He gradually became a leader of a liberal minority that sometimes has managed to overcome a four-member conservative group now headed by Chief Justice John G. Roberts Jr. As the senior member of the court, Mr. Stevens in recent years has sometimes used the power to assign the writing of majority opinions to attract the vote of a swing member, first Justice Sandra Day O’Connor and later Justice Anthony Kennedy, thus making a majority.

His stands have sometimes been surprising and unpredictable. Early in his tenure he opposed race-based affirmative-action programs but later voted to uphold such a program at the University of Michigan Law School. He dissented from a majority decision defending flag-burning as a First Amendment right. He called the flag a unique symbol that was worthy of protection. Yet he joined the liberals on abortion rights, gay rights and separation of church and state.

Justice Stevens is probably best known for his ringing dissents from a majority that has moved steadily to the right. In this year’s 5-4 decision allowing corporations to spend freely in elections, he read aloud his 90-page dissenting opinion. And in Bush v. Gore, which handed the presidency to George W. Bush, he said the big loser was “the nation’s confidence in the judge as an impartial guard of the rule of law.”

He has been a courageous independent voice for freedom and justice and constitutional rights on a court that has often departed from that high standard.

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