Unfaithful Friend of Liberty: John Paul Stevens' Spotty Record as a Defender of Individual Rights

By Sullum, Jacob | Reason, July 2010 | Go to article overview

Unfaithful Friend of Liberty: John Paul Stevens' Spotty Record as a Defender of Individual Rights


Sullum, Jacob, Reason


As SUPREME COURT Justice John Paul Stevens "gradually became the leader of the court's liberal wing," The New York Times reported, "he became increasingly skeptical of claims of government power." According to a Washington Post editorial, "his voice was consistently raised on behalf of those vulnerable to government excesses."

Such descriptions, which were common after Stevens announced his retirement in April, are based on a highly selective concern about state power. A closer look at Justice Stevens' record shows that he has been anything but consistent in his opposition to government excesses and that in some ways he has become less inclined to protect constitutional rights.

To his credit, Stevens has defended the rule of law in terrorism cases, and he often has resisted the Supreme Court's tendency to facilitate the drug war by whittling away at the Fourth Amendment's prohibition of "unreasonable searches and seizures." Yet Stevens has approved more than a few Fourth Amendment compromises, including decisions saying that a sniff by a drug-detecting dog is not a search, that police may search closed containers in cars and observe backyards from the air without a warrant, that a suspected drug smuggler can be detained until she defecates under supervision, and that a driver's unusually long wait at a stop sign justifies stopping him and peering into his car. He dissented from a 200I decision that said police need a warrant to conduct infrared surveillance of a home, and in 2005 he wrote a decision that allowed police to use drug-sniffing dogs during routine traffic stops.

Stevens' First Amendment record is similarly spotty. He wrote both the 1978 decision that upheld regulation of broadcast indecency and the 1997 decision that overturned regulation of online indecency. He voted to uphold censorship of student newspapers and to overturn censorship of student banners. In 1989 and 1990 he dissented from decisions overturning state and federal bans on flag burning. This year he angrily dissented from a decision that said people organized as corporations, including nonprofit interest groups, have a right to talk about politics at election time. …

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