The last great conservative justice is dead

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President Gerald Ford loathed Justice William O. Douglas. Indeed, as a member of Congress, Ford declared Douglas “unfit” and pledged that he “would vote to impeach him right now.” So when the liberal Douglas, who Ford once accused of pushing a “hip pie‐yippie style revolution,” left the Supreme Court in 1975, Ford had a chance to bring a more conservative sensibility to the nation’s highest court.

Working off a list that included hardliners like future Justice Antonin Scalia and President Reagan’s failed Supreme Court nominee Robert Bork, Ford eventually chose Justice John Paul Stevens.

Ford’s choice, who Attorney General Edward Levi described as “a moderate conservative in his approach to judicial problems and in cases involving the attempted expansion of constitutional rights and remedies,” served 35 years on the Supreme Court — retiring in 2010. On Tuesday, Justice Stevens died. He was 99.

During more than a third of a century as a justice, Stevens saw the earth move under his feet. The son of a wealthy Chicago hotel mogul, Stevens entered the Supreme Court deeply skeptical of the hip pie yippie revolution Ford decried. He left widely viewed as a liberal.

But this perception is inaccurate. Stevens stood still, while the Supreme Court’s center of gravity lurched to the right. “The Court has changed significantly,” Stevens wrote in 2006. “It was then more faithful to Brown and more respectful of our precedent than it is today. It is my firm conviction that no Member of the Court that I joined in 1975 would have agreed with today’s decision.”

The decision was Parents Involved v. Seattle School District No. 1, which held that two public school districts violated the Constitution by implementing plans to desegregate their schools.

Stevens did not join the court as a crusader for racial justice. The University of California at Davis “violated Title VI of the Civil Rights Act of 1964 by excluding” a white applicant “from the Medical School because of his race,” Stevens wrote in his dissent in University of California Regents v. Bakke. Had Stevens convinced just one more colleague to join that dissent — it was joined by three other justices — it is likely that affirmative action in colleges and universities would have died in 1978.

Similarly, a powerful thread of social conservatism animated Stevens’ early First Amendment decisions. “Few of us would march our sons and daughters off to war to preserve the citizen’s right to see ‘Specified Sexual Activities’ exhibited in the theaters of our choice,” Justice Stevens wrote in Young v. American Mini Theatres, a case upholding a Detroit ordinance restricting “adult” movie theaters.

When a majority of his colleagues struck down a Texas law prohibiting flag burning in Texas v. Johnson, Stevens began his dissent with an ode to symbolic patriotism, nationalism, and American exceptionalism:

A country’s flag is a symbol of more than “nationhood and national unity.” It also signifies the ideas that characterize the society that has chosen that emblem as well as the special history that has animated the growth and power of those ideas. The fleurs-de-lis and the tricolor both symbolized “nationhood and national unity,” but they had vastly different meanings. The message conveyed by some flags — the swastika, for example — may survive long after it has outlived its usefulness as a symbol of regimented unity in a particular nation.

So it is with the American flag. It is more than a proud symbol of the courage, the determination, and the gifts of nature that transformed fledgling Colonies into a world power. It is a symbol of freedom, of equal opportunity, of religious tolerance, and of goodwill for other peoples who share our aspirations. The symbol carries its message to dissidents both at home and abroad who may have no interest at all in our national unity or survival.

Yet, what set Stevens aside from the ideological warriors who dominate the Supreme Court today is that he also understood that judges play a limited role in society. The toughest challenge for any federal judge, and especially for a Supreme Court justice, is holding awesome, world-changing power and wielding that power modestly. Stevens was a conservative. But he was a conservative who treasured restraint, stability, carefulness, and democracy.

He knew that, as a judge, his role in our system is limited. He was not there to impose his own will on the American people.

Stevens lost the argument about affirmative action in Bakke, for example, and he accepted that loss gracefully. A quarter century later, when the question of whether universities can consider race in admissions reached his court again, Stevens voted with the majority to say that yes, they can.

Justice Stevens respected precedent. He knew that the justices of today have no right to frivolously cast aside the wisdom of generations of judges simply because the newest justices think they know better.

Likewise, Stevens knew that law is not politics. And that it is not the job of a judge to second guess policy decisions that they disagree with.

“I believe in the free market,” Stevens told interviewer Jeffrey Rosen near the end of his time on the Supreme Court. “I’m not sure if the minimum wage is actually sound, to tell you the truth.”

But Stevens also rejected long discredited decisions declaring the minimum wage unconstitutional. He respected democracy and he respected the American people. Stevens also knew that he must respect Congress’ decision to enact a minimum wage, even if he did not support such a law himself.

Justice Stevens lived long enough to see the conservatism he cherished rejected by a different breed of judges who call themselves conservatives. He died a witness to a new generation that is skeptical of precedent, more partisan than any justice he served with for most of his career, and eager to remake American law quickly.

And he will be missed, not simply for what he did in his life, but for what he did not do as a justice. Stevens held one of the most powerful jobs in the country. And he respected Americans enough to use that power sparingly.




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