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We Need More Justices Like Stevens

The retirement of Supreme Court Justice John Paul Stevens will remove my favorite jurist from public life, but I am hopeful that his thoughtful, fair-minded legacy will live on through some current justices and others yet to be appointed.

Stevens, who will turn 90 next Tuesday, announced last week that he will leave the court this summer. He is our last link to an era when Supreme Court candidates were (with some notable exceptions) chosen for perceived intelligence and fairness rather than their ideology.

Stevens was one of a long line of justices who did not turn out the way the presidents who nominated them may have expected. Though he retires as the unofficial dean of the court’s four-member liberal bloc, Stevens was a moderately conservative Republican from a prominent Chicago family when President Gerald Ford selected him in 1975. Five years earlier, President Richard Nixon first put Stevens on the federal bench by choosing him for the U.S. Seventh Circuit Court of Appeals.

Nixon and Ford both were conservative Republicans who were not looking to tilt the Supreme Court to the left. But Ford did not impose any ideological litmus test on his nominee. In 2005, with Stevens firmly ensconced in the court’s liberal wing, Ford said he remained proud of his selection.

Stevens at first seemed to fit the conservative mold. He helped revive the death penalty, which the Supreme Court suspended in 1972, by joining in the majority’s 1976 decision in Gregg v. Georgia that approved several states’ revised death penalty procedures. Also in 1976, Stevens rejected a free speech argument that city ordinances could not bar adult theaters from certain areas. He criticized affirmative action, voting against a racial quota system in Regents of the University of California v. Bakke (1978) and against reserving a portion of federal contracts for minority-owned companies in Fullilove v. Klutznick (1980).

But Stevens’ views evolved over time, and he ultimately became an advocate of judges who learn on the job, as he put it. Stevens argued strongly in favor of separation of church and state. He wrote the majority opinion in Wallace v. Jaffree (1985), in which the court held that the state of Alabama could not require public schools to hold a minute of silence “for meditation or silent prayer.” In a dissent in Van Orden v. Perry (2005) Stevens insisted that it was unconstitutional to display the Ten Commandments on public property. He took a stance against inflicting capital punishment on juveniles and on the mentally ill, and, though he never flatly rejected the death penalty, he wrote in 2008 that it was becoming “anachronistic.”

His positions also shifted on affirmative action and the treatment of obscenity under the First Amendment, though his impassioned dissent in this year’s Citizens United case showed his continued willingness to support government restrictions on political speech, which the court’s conservatives — rightly in my view — rejected.

In Bush v. Gore, Stevens supported a recount, memorably arguing that a Supreme Court decision to halt the count would undermine public confidence in the rule of law. In Hamdan. v. Rumsfeld he vocally opposed the Bush administration’s plan to use military commissions to try terrorism suspects held at Guantanamo Bay.

The New York Times last week referred to Stevens as “the leader of the liberal wing of a court that has become increasingly conservative.” Stevens himself has said that his perceived liberal drift was as much a function of the court’s changes as his own. And I think he is right, given, for example, his continued support for the death penalty and for restrictions on corporate political speech.

Though I strongly disagree with Stevens on those issues and others, I respect him because his opinions are connected, not by a single ideological strand, but by sound legal reasoning. I also have come to greatly admire his physical and intellectual vigor, as he worked through his 80s and, unlike most of his peers, wrote the first draft of his opinions himself rather than assigning that duty to law clerks.

Nowadays our lawmakers use every Supreme Court nomination as an opportunity to flex ideological muscles, rally their party faithful and, not least, raise campaign money. The theory is that we can know in advance how a justice is going to decide the controversial issues of our time. Sometimes we can; not every justice turns out to be a surprise. But often we cannot. In any case, justices can serve for such a long time that the burning issues at the time of confirmation become more or less irrelevant. Only two men have held Stevens’ high court seat in the past 71 years: Stevens for 35, and his predecessor William O. Douglas, appointed by Franklin D. Roosevelt in 1939, who served for 36 years.

Chief Justice Earl Warren, who was once the conservative Republican governor of California, went on to lead the most liberal court in history. After his appointment by Dwight D. Eisenhower in 1952, Warren wrote the majority opinion for the court’s unanimous decision in Brown v. Board of Education (1954), overturning the doctrine of “separate but equal.” In Gideon v. Wainwright (1963), another unanimous decision, the Warren court established that states must provide attorneys in criminal cases for defendants unable to afford private counsel. The Warren court also unanimously put an end to bans on interracial marriages in Loving v. Virginia (1967).

David Souter, a recent retiree from the court’s liberal bloc, was also appointed by a Republican president, George H.W. Bush. At the time of Souter’s appointment in 1990, White House Chief of Staff John Sununu declared that he would be a “home run” for conservatism. During his confirmation hearings, the president of the National Organization of Women (NOW), Molly Yard, testified that Souter would “end freedom for women in this country.” But in 1993, when the case of Planned Parenthood v. Casey came before the court, Souter joined the majority of the court in upholding the constitutional right to have an abortion established by Roe v. Wade. Over the years, Souter continued to move to the left, eventually ending up firmly in the liberal camp.

Justice Anthony Kennedy has also been a bit of a surprise. Appointed by Ronald Reagan in 1988, his opinions are generally conservative. But, when it comes to individual rights, Kennedy shows a fiercely protective, almost libertarian streak. He authored the 2003 majority opinion in Lawrence v. Texas, overturning a Texas statute that criminalized homosexual sodomy. In Texas v. Johnson, he voted to uphold the constitutional protection of flag burning under the First Amendment, a position that the more liberal Justice Stevens opposed.

Chief Justice John Roberts has some traits in common with Stevens, including great intelligence and a Midwestern upbringing. I would not be surprised to see him earn the kind of respect Stevens now enjoys. Kennedy, the court’s swing vote between liberals and conservatives, is gaining credibility as the court’s chief defender of personal liberties. On the left, Justice Steven Breyer reminds me in many ways of Stevens. Justice Sonia Sotomayor is still in her first term and is an unknown quantity, but at least she has had a year to observe Stevens. I hope she learned something.

A polarized, partisan Supreme Court is bad for the court and bad for the country. Stevens, the conservative who became the court’s leading liberal, is an ironic symbol of that polarization. Since the judicial battles show no sign of ending soon, the best we can hope for is more justices like John Paul Stevens.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s most recent book, The High Achiever’s Guide To Wealth. His contributions include Chapter 1, “Anyone Can Achieve Wealth,” and Chapter 19, “Assisting Aging Parents.” Larry was also among the authors of the firm’s previous book, Looking Ahead: Life, Family, Wealth and Business After 55.

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