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Home , Adam Liptak, Harry Blackmun

The Stevens Myth Why has everyone fallen for 's self-serving narrative? JUSTIN DRIVER

EGAL C IRCLES HAVE BEEN ABUZZ for the last N TH E QU EST ION OF government's ability to take eight months with the news that Justice John Paul account of race, Stevens has attempted to maintain a Stevens had hired only one law clerk to begin work­ O veneer of consistency with some particularly intricate ing this summer. This move, Supreme Court watch­ tap danCing. In a 1980 case validating a federal program de­ ers o bserved, strongly suggested that Stevens's signed to steer business to minority-owned companies, Ste­ Lthirty-fifth term at the Court would be his last. As journalists vens dissented and, in a notorious footnote, compared the and scholars begin contemplating his place in history, Stevens program to laws from Nazi Germany. Stevens has sought to himself ha s not-so-subtly attempted to burnish his judicial explain his subsequent embrace of race-conscious measures legacy. [n a series of interviews over the last few years, Ste­ in educational settings by emphasizing the different contexts. vens has repeatedly attempted to portray his views as fun­ Unlike affirmative action in business (where the group of damentally unaltered since he joined the Court. This claim beneficiaries is constrained), Stevens told Rosen that, in the is somewhat counterintuitive, as he was elevated by Repub­ educational world, "the whole student body profits from hav­ lican President but has become the leader of ing diversity in the classes. So I really don't think I've changed the Court's liberal bloc. "[ don't think that my votes repre­ my views about this." sent a change in my own thinking;' Stevens told TNR legal­ During the course of his career, however, Stevens has voted affairs editor Jeffrey Rosen for a 2007 profile in The New York both to strike down affirmative action in higher education Times Maga zine. ''I'm just disagreeing with changes that the and to uphold affirmative action in business. In 1978, Stevens others are making." When Stevens encounters his old opin­ wrote an opinion seeking to invalidate a medical school's ef­ ions these days, he professes keen admiration for what he forts to achieve a racially diverse student body. Although he sees. "We're getting to a point that our cases are revisiting admittedly would have decided the ca se on statutory (rather issues that I wrote on 10, 20, 30 years ago;' he conn.ded to than constitutiona l) grounds, Stevens appealed to the very journalist last year. "I really have felt pretty same colorblind principle that motivates affirmative action good about re-reading the opinions I wrote many years ago. opponents today. "The University of California through its [ hav e to confess that:' special admissions policy excluded Allan Bakke from partici­ Commentators have embraced Stevens's preferred self­ pation in its program of medical education because of his race;' image, largely portraying him as an island of stasis amid a Stevens began in his oral statement from the bench. In 1995, sea of dynamism. Adam Liptak dutifully relayed the justice's moreover, the Court adopted Stevens's earlier skepticism of assessment in the Times earlier this month: "His views have programs designed to aid minority-owned companies (albeit generally remained stable, [Stevens] said, while the court has not his reasoning that such programs smacked of the Third drifted to the right over time:' But, while the Court, the GOP, Reich). By then, Stevens had changed positions, and he wrote a and the nation as a whole all became more conservative dur­ powerful dissent urging the Court to recognize the distinction ing Stevens's tenure, these trends do not negate the fact that between inclusive and exclusive uses of race. It may well be Stevens has also tacked hard to the left. Indeed, examining that treating all racial classifications identically "doesn't make his early years on the Court reveals rulings that would be any sense;' as Stevens told Rosen in the wake of the Court's unfathomable coming from Stevens today. While his early invalidation of two voluntary school-integration programs. If record is habitually described as "quirky;' it is underappreci­ that is so, however, Stevens passionately advocated a senseless ated that this quirkiness often took Stevens in conservative position for many years. directions- particularly in cases involving society's most con­ Although Jeffrey Toobin's recent New Yorker profile granted tentious legal disputes. Rather than ap plauding Stevens for a th at Stevens has "evolved" on race and capital punishment, it nonexistent steadfastness and misremembering the justice nonetheless furthered an erroneous conception of consistency that he once was, the legal left should instead be content to in other high-profile areas . The piece quotes former federal celebrate the admirable justice that he has become. judge Abner Mikva, an old friend from Chicago, describing Puncturing the myth of Stevens's judicial consistency Stevens as fi scally conservative, but noting that "he was al­ could also serve to mute some of the left's more overwrought ways a great progress ive on civil rights and social rights:' In mourning for the demise of country-club Republicanism. Ste­ this vein, Toobin asserts: "Stevens has always supported abor­ vens- with his wealthy background, ongoing devotion to golf tion rights and an expansive notion of freedom of speech:' The and tennis, and membership at four country clubs around the truth, though, is a good deal more complicated. nation- is an archetype of the GOP establishment from a by­ In an abortion case decided in 1976, Stevens split his ju­ gone era. To the extent that some of Stevens's initial opinions dicial ticket on two consent requirements contained in a on the Court can be viewed as articulating the legal views of Missouri statute. Although he voted with the liberal maj or­ the Skip and Muffy set, it becomes clear that searching social ity to invalidate a spousal consent provision, Stevens also reform seldom originated on the back nine. Stevens, like many sided with the conservatives in dissent, believing that Mis­ of his fellow Republican-nominated justices, took some time souri could require a pregnant young woman under the age before moving decidedly to the left. of 18 to obtain permission from her parents before receiving

THE NEW REPUBLIC APRIL 29, 2010 19 I an abortion. One year later-over the ther's (apparently wrongful) conviction Stevens in 1975, activists on the right are dissent of Justices Harry Bl ackmun, for embezzlement influenced his judicial now fervently dedicated to ensuring that William Brennan, and Thurgood Mar­ thinking. This conviction taught Stevens Republicans capitalize upon each Court shall-Stevens joined the majority in "that the criminal justice system can mis­ nomination. Indeed, as recounted in jan holding that states do not act imper­ fire sometimes:' Examining Stevens's first Crawford Greenburg's Supreme Conflict, missibly when they deny state Medicaid full year on the Court nevertheless re­ it would be difficult to exaggerate how funds for abortions that have not been veals a justice who often appears unsym­ determined George WI. Bush was to avoid deemed "medically necessarY:' pathetic to criminal defendants' rights. To repeating his father's ill-conceived selec­ Stevens's most significant early opin­ select only one of the many available ex­ tion ofSouter. So wary ofleftward judicial ions as a justice involved the First amples, Stevens wrote a dissent in Doyle drift are conservatives that Bush-a man Amendment. Over the last two decades, v. Ohio contending that it should be con­ not usually known for either his grasp he has been a generally reliable defender stitutional for a prosecutor to cross-ex­ of jurisprudential nuance or his lack of offree speech. Yet this was not always so. amine a defendant regarding his failure self-assurance-expressed some uncer­ In a 1976 case decided by a 5-4 margin, to offer an exculpatory story immedi­ tainty after nominating . Stevens wrote a plurality opinion that ap­ ately after being arrested and receiving "I checked this man out," Bush said to C. proved governmental zoning regulations Miranda warnings. It is difficult to un­ Boyden Gray. "I just hope he's the same regarding where adult films could be derstand how such a view would not have twenty years from now as he is todaY:' shown, even if those films had not been effectively eviscerated the right to remain Almost five years into Roberts's ten­ deemed legally obscene. The plurality silent. Today, in stark contrast, Stevens ure as chief justice, he and opinion rejected the then-prevailing cat­ views Miranda as sacrosanct, leading him have betrayed few signs of unleashing egorical approach to speech and paved in February to be one ofonly two dissent­ their inner liberals. After several decades the way for increased content-based reg­ ers who would have held unconstitutional of misfires, Republicans appear to have ulation. "[Flew of us would march our a Florida police department's minor devi­ learned their painful lesson. Experience sons and daughters off to war to preserve ation from the standard warnings. suggests that the line separating judicial the citizen's right to see 'Specified Sexual turncoats from judicial loyalists-for the Activities' exhibited in the theaters ofour TEVENS'S MARJ(ED ideological shift GOP, at least-runs along the banks of choice;' Stevens wrote. It is a cute line, merits scrutiny not least because he the Potomac. Over the last four decades, but it also articulates a test that, taken Streads upon a well-worn path. In the staunch Court conservatives have spent seriously, would permit the government post- World War II era, a strikingly large substantial periods working in Wash­ to censor unpopular speech that is vital percentage of Republican-nominated ington for Republican administrations to democracy. justices have disappointed conserva­ before being nominated. In addition to In a landmark free-speech case from tives after being installed at the Supreme Roberts (White House counsel's office) 1978-also decided 5-4-Stevens wrote Court. President Eisenhower reportedly and Alito (Office of Legal Counsel), that an opinion for the Court validating the called 's nomination "the list includes (again censure by the Federal Communications biggest damn-fool mistake I ever made:' OLC), (yet again, OLC), Commission (FCC) of a radio station for Had Ike lived beyond 1969, though, he and (Equal Employ­ ment Opportunity Commission). Many contend that sustained executive Stevens, today a free speech champion, tilted right in branch experience serves to inoculate 1970s cases involving adult films and George Carlin. potential justices from the "Greenhouse Effect:' judge Laurence Silberman fa ­ mously invoked this term to describe airing George Carlin's "Filthy Words" rou­ may well have reserved that ignominious the judicial machinations of conserva­ tine. Carlin identified seven vulgarities distinction for another justice he placed tives that were designed to win praise that were unsuitable for broadcast ("shit, on the Court, William Brennan. from the liberal media as personified by piss, fuck, cunt, cocksucker, mother­ In subsequent years, Harry Blackmun, , fucker, and tits"), and then delighted in , and, of course, Stevens be­ Court correspondent from 1978 until she exploring myriad linguistic permutations. came stalwart members of the Court's gave way to Liptak in 2008. Perhaps tell­ Stevens reasoned that FCC regulation liberal wing. Apart from these outright ingly, the modern Republican-appointed was permissible in light of the broadcast apostates, moreover, several other GOP­ justices who have often sided with the media's "uniquely pervasive presence in backed justices have bucked conserva­ left had their formative pre-Court pro­ the lives of all Americans" and because tive legal orthodoxy in prominent cases. fessional experiences outside the Belt­ the media "is uniquely accessible to chil­ Lewis Powell, Sandra Day O'Connor, way. Unless future Republican preSidents dren:' Justice Brennan, joined by Justice and have all at vari­ decline to select Court nominees who Marshall, disdainfully dissented: "I find ous times been deemed judicial traitors. have been tested in the D.C. cauldron, it the Court's misapplication offundamen­ If liberals have been disappointed with seems unlikely that anyone on the right tal First Amendment principles so patent, recent Court decisions, imagine how will have occasion to rue the Liptak Ef­ and its attempt to impose its notions of dreary constitutional conditions would fect. Al though the sentiment has been propriety on the whole of the American be had Republicans competently selected badly overworked, it must be stated that, people so misguided, that I am unable to justices to implement their preferred whenever he chooses to exit the stage, remain silent:' Or. as the point might be judicial vision. we may not soon see the likes of John pressed in the words of Carlin's routine: The days of being able to count upon Paul Stevens again. "['ve had that shit up to here:' Republican presidents to replenish the Turning to cases involving criminal de­ Court's liberal ranks may well have, alas, Justin Driver is an assistant professor at the fendants, Stevens told Rosen that his fa­ come to a close. Unlike when Ford tapped University ofTexas School ofLaw.

20 APR I L 2 9, 2010 THE NEW REP U B Lie