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John Paul Stevens the restrainer

Justice John Paul Stevens has long been labeled, correctly, as the leader of the Supreme Court’s liberal bloc, but I suspect that future historians will refine that distinction a little more carefully. Stevens’s chief contribution has been to lead opposition to the galloping judicial overreach of the court’s conservatives.

It’s that opposition that’s on display in his two best-known dissents: First, in Bush v. Gore a decade ago, then, this year, in the Citizens United case.

In the earlier case, Stevens gave voice to all those who felt queasy, constitutionally no less than politically, about the Supreme Court effectively bestowing the presidency on George W. Bush, in a decision that broke de facto, if not de jure, along the justices' party lines. In his concluding paragraph, Stevens artfully conflated the lack of confidence in Florida’s court shown by the Supreme Court majority with the lack of confidence in the impartiality of the Supreme Court itself that the majority opinion inspired. But the artfulness doesn’t diminish one iota the deep indignation that Stevens voiced at a decision that could only be viewed as an assertion of partisanship by the nation’s highest court. "What must underlie the petitioner’s [that is, the Bush campaign’s] assault on the Florida election procedures," he wrote:

is an unstated lack of confidence in the impartiality and capacity of the state judges who would make the critical decisions if the vote count were to proceed. Otherwise, their position is wholly without merit. The endorsement of that position by the majority of this Court can only lend credence to the most cynical appraisal of the work of judges throughout the land. It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. Time will one day heal the wound to that confidence that will be inflicted by today's decision. One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year's Presidential election, the identity of the loser is perfectly clear. It is the Nation's confidence in the judge as an impartial guardian of the rule of law.

That same skepticism towards judicial overreach suffused Stevens’s dissent in the recent Citizens United decision, which overturned nearly a century of established law to give corporations the right to make direct limitless investments in political campaigns. In his questioning from the bench during oral arguments, and then in his lengthy and impassioned dissent, Stevens was clearly appalled that Chief Justice John Roberts and his right-wing colleagues had inflated a case that raised rather narrow issues so that they could strike down a century of precedents and free corporations from constraints on their political influence that only rightwing ideologues could lament.

Scholars will surely cite Stevens’s dissents as the leading examples of how judicial restraint became the mantra not of conservative justices but of liberal ones during the late 20th and early 21st centuries. And yet this shift, however epochal, has not been sufficiently acknowledged by either the news media or politicians. Indeed, Republican elected officials still get away with ritual condemnations of liberal judicial activism, as though it weren’t the right-wing justices, whom they elevated and supported, who were the real activists. Reacting to Stevens’s retirement announcement today, Senate Republican leader Mitch McConnell said, "As we await the president's nominee to replace Justice Stevens at the end of his term, Americans can expect Senate Republicans to make a sustained and vigorous case for judicial restraint and the fundamental importance of an even-handed reading of the law."

Would that McConnell actually meant what he said. If he did, he’d back a liberal nominee in the tradition of John Paul Stevens.

By Harold Meyerson  | April 9, 2010; 1:53 PM ET
Categories:  Meyerson  | Tags:  Harold Meyerson  
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Meyerson is a the idea that he would have something useful to say about any judiciary at all is a non-starter.

Posted by: PanhandleWilly | April 9, 2010 2:56 PM | Report abuse

The point is not what Meyerson, and you can be sure soon enough Will, Krauthammer and Parker say, but rather what Justice Stevens wrote. Or is his judicial writings a non-starter as well?

Posted by: kermit5 | April 9, 2010 3:05 PM | Report abuse

Harold - where do we start? First off you begin with Steven's being "The Supreme Leader of the Liberal bloc." Then you speak of the "Conservatives" overreach....then you move on to site Steven's dissent : "It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law."

How can you believe in that dissent - when you your very self is acknowledging within the Supreme's an alliance or favoritism towards one group or another. In your very article you site 2 distinct groups within the court - yet then how can you believe in Steven's writing that it is to be left to men and women who administer judicial law. In your very article - you site a bias...are you not a man? So how does one then believe the very same people within states who carry labels of Democrat and or Republican be left to carry out laws without bias? Think about it?

Posted by: short1 | April 9, 2010 3:11 PM | Report abuse

The word is cite, not site, genius.

Posted by: dollarwatcher | April 9, 2010 3:30 PM | Report abuse

Gore vs Bush was an illusion. The election was over after the first computer recount. Computers don't lie unless they are programmed to lie. Bush won by dumb luck, but he won.

Stevens won't be missed.

Posted by: hipshot | April 9, 2010 3:58 PM | Report abuse

Let's be clear. Judicial activism is rightly defined as making decisions based upon personal preferences, instead of the actual text of the Constitution. And spare me the rhetoric about the Constitution growing more archaic if you don't let it "breathe". That's what amendments are for, and liberals don't feel they should have to do the democratic and political heavy lifting to ratify one.

Liberals have self-servingly redefined it as lack of deference to the legislature and precedent, regardless of whether those precedents were ever Constitutional to begin with.

It's funny how in my 9th grade Civics class, I was taught that Job 1 of the Supreme Court is to judge the Constitutionality of laws, and I don't seem to recall a Job 2. I guess now I must have gotten a "conservative" education. Yeah, okay.

Once, just once I'd love to see Meyerson or Dionne take a SCOTUS decision they disagree with, and explain in detail how it's inconsistent with a specific passage of the Constitution. And that's why, once again, liberals redefine judicial activism, because if it centers around the actual text of the Constitution, they're SOL.

Posted by: SamsDog | April 9, 2010 4:39 PM | Report abuse

Actually, Samsdog, the court has more tha one job.

Article 2, Section 2: "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, THE LAWS OF THE UNITED STATES (my emphasis), and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;--between a State and Citizens of another State;--between Citizens of different States;--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects."

Sounds as if your civics class may have missed a few.

Posted by: bigfish2 | April 9, 2010 4:55 PM | Report abuse

Ooops, make that Article 3. My point still stands.

Posted by: bigfish2 | April 9, 2010 4:57 PM | Report abuse


Of course, the highest law is that of the US Constitution. Modern Liberals tend to forget that.

Posted by: BradG | April 9, 2010 5:50 PM | Report abuse

There has to be a better way to honor Justice Stevens' commitment to judicial restraint than this. Mr. Meyerson quotes only Justice Stevens' dissenting opinion in Bush v. Gore.

In it Justice Stevens refers to the Bush campaign's argument as "an unstated lack of confidence in the impartiality and capacity of the state judges...Otherwise, [the Bush campaign's] position is wholly without merit. The endorsement of that position by the majority of this Court can only lend credence to the most cynical appraisal of the work of judges..."

This is less than restrained argument in support of judicial restraint. One can scarcely read it other than as implicit affront to the impartiality of Justice Stevens' five colleagues who ruled in favor of the Bush campaign. If that ugly part of Justice Stevens' opinion were representative of his whole opinion, then Justice Stevens' own impartiality would be in doubt. Restrained judicial craftsmanship requires more than attack on the other side. Judicial restraint involves restraint in what is to be considered in judicial argument. It is a kind of dispassion. Part of it lies in refraining in uncolleagial nastiness, even when, as here, it might be excused as written in the heat of passion under severe time constraint.

Fortunately there was much more substance to each of the justices' opinions from both sides. Read them! You will probably find that in other parts of his opinion Justice Stevens does at least a creditable job of rebutting the substantive arguments of the court's conservative majority. Future historians may well view other parts of Justice Stevens' opini0ns (even his opinion in Bush v. Gore) as examples of judicial restraint.

It's too bad Mr. Meyerson didn't provide any such examples. Justice Stevens has had too long and distinguished a Supreme Court tenure to be honored by our remembering him by his intemperate remarks serving as journalistic boilerplate to rail against a decision with which Mr. Meyerson disagrees.

Posted by: MarkDavidovich | April 9, 2010 6:18 PM | Report abuse

The GOP will tear down anyone Obama nominates, so he may as well nominate a strong, young liberal. No more trying to accommodate the right. It does not work.

Posted by: kurthunt | April 9, 2010 7:00 PM | Report abuse

Hard Leftists, neo-Stalinists, such as Meyerson & Dionne look at the Constitution with ill-concealed disdain, consequently their unhappiness with a SCOTUS that adheres to the constitutional intent of the Founding Fathers.

Posted by: LoachDriver | April 9, 2010 7:43 PM | Report abuse

Stevens was appointed by President Ford, a Republican. That pretty much says all you need to know about the sad state of the Republican Party today.

Posted by: bertram2 | April 9, 2010 8:31 PM | Report abuse

The trouble with the Stevens paragraph you quote is that the Florida supreme court was anything but neutral. There were several Florida judges, Democrats even, including one black woman, who sided with Bush, but the Florida supreme court was steadfastly on Gore's side. What is more, the US constitution gives the right to choose Florida's representatives to the Florida legislature, and not to the Florida supreme court. Here is a quote from the US constitution:

"Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress."

Note the word "Legislature" in the paragraph above. So the US supreme court did make the right decision.

Don't get me wrong. I personally think that Gore would have been a better president than Bush, and Gore did win the popular vote. Bush's presidency was quite harmful to the nation.


The refusal of many Democrats to accept the fact that Bush was legally elected has led to a climate of mutual hostility between the parties and done enormous harm to the nation.

I do not hold the Republicans innocent. Their behavior in recent months has hardly been constructive. But if the nation is to come together then hostility by Democrats towards Republicans, AND VICE VERSA must cease.

Posted by: rohitcuny | April 10, 2010 7:49 AM | Report abuse

The labeling of progressives as "Neo-Stalinists" is entertaining, but shows a complete lack of understanding by the reationary fool who used the term. Anyone with any knowledge of the subject knows the head of the NEW YORK FEDERAL RESERVE helped keep the Bolshevicks in power in 1917 via the FAKE Red Cross Mission, which was a thinly veiled group of Wall Streeters intent on making deals. So if the same Wall Street vipers who installed Lenin also helped install HITLER, then there is no RIGHT OR LEFT, it's us against them, which JUDGE STEVENS figured out over time. HUMANS ARE CATTLE< and hate who they are told to hate, invariably by snakes who are in the business of making vast amounts of cash thru WAR and monopoly as a business model.

Posted by: edboswell | April 10, 2010 1:56 PM | Report abuse

When a Supreme Court Justice is so consistently and ideologically liberal, how can one hang much upon his predictable liberal opinion of the Bush election decision. Only Kennedy brings unbiased, non-ideological reason to the Supreme Court. He is therefore, the only Justice who should be sitting on the Court.

Posted by: hz9604 | April 10, 2010 8:07 PM | Report abuse

IN some ways, it was a modest decision. A year ago, the United States Supreme Court ruled that a city in Connecticut could use the power of eminent domain to make room for private development. The decision simply applied existing law and deferred to the judgments of local officials.

But the outcome was a revolt.

The decision provoked outrage from Democrats and Republicans, liberals and libertarians, and everyone betwixt and between. Dozens of state legislatures considered bills to protect private property from government seizure, and many passed new legislation; Justice John Paul Stevens, the author of the decision, issued something like an apology; a campaign was started to use eminent domain to seize the home of another justice, David H. Souter; and, on Wednesday, a ruling from the Ohio Supreme Court adopted the analysis of the dissenters in last year's decision to reject an effort to oust the residents of a Cincinnati suburb.

Sometimes, Supreme Court cases have a way of highlighting issues that had been absent from the national agenda, and the cases can provoke reactions that have a far greater impact than the ruling itself.

''I always tell my students,'' said Douglas Laycock, a law professor at the University of Texas, ''that one of the best things you can do is lose a case in the Supreme Court.''

Dana Berliner, a lawyer with the Institute for Justice, the libertarian legal group that represented the homeowners in both the Connecticut and Ohio cases, said the United States Supreme Court decision, Kelo v. New London, gave rise to ''a tidal wave of outrage.''

Posted by: LETFREEDOMRING2 | April 10, 2010 11:41 PM | Report abuse

I hope the President nominates a strong, younger liberal with "empathy". However, given Mr. Obama's civil liberties and due process record to date, I do not think that is a given.

Posted by: pointpetre | April 12, 2010 10:41 AM | Report abuse

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