Justice John Paul Stevens served on the Supreme Court longer than almost anyone before or since. He died on Tuesday at the age of 99. It is appropriate to pray for his soul and to offer condolences to his family and friends.
When a private man dies, it is also appropriate to dwell on his good deeds, his virtues. But when it is a public figure who makes his exit, particularly when it is one whose work has shaped the lives of his countrymen, it is important, in addition, to assess the person’s work. And to do that honestly, the standard niceties cannot apply.
Many commentators, especially on the left, piped up as a chorus to sing the praises of Justice Stevens and his work. These require an honest commentator to provide a corrective where one is needed. And in the case of Stevens, it is sorely needed.
Stevens possessed an excellent legal mind and was a canny tactician. Many of his rulings were correct, important, and necessary. But some of the praise of his work has been misleading. A Daily Beast writer wrote that Stevens represented a time “when the law still protected the weak from the strong.” One newspaper’s obituary called him the “champion of the little guy.”
This is not true. Much of Stevens’ work on the Supreme Court increased the power of government, especially the federal government, in ways that stripped power from the vulnerable and the out-of-power. One has to believe that the state is more likely to help the little guy than the little guy is to help himself to believe that Stevens’ work was an unalloyed good.
This does not mean Stevens intended to do harm to individuals. Having lived through the Civil Rights era, Stevens probably saw federal power as a boon to the powerless. But the fallout of many of his rulings has increased government power to baneful effect.
It was he who wrote the infamous opinion in Kelo v. New London, which shredded constitutional limits on the power of eminent domain. This decision freed governments to trample on property rights, which are part of the foundation of a free society and thriving economy. New London, Conn., at the request of drug giant Pfizer, stole land from its working-class residents including Susette Kelo. Her land was handed over to private developers.
The Constitution says governments may take land from private owners “for public use,” not for private use. But in Kelo, Stevens created his own test, which hinged on whether the local government truly believed the taking was for the public good.
You see the same pattern in Stevens’ dissents in District of Columbia v. Heller and Citizens United v. Federal Election Commission. These are the two cases Stevens continued to argue long after his retirement, telling audiences everywhere he could that he was right and Justices Alito and Scalia were wrong.
In both cases, Stevens wanted to empower the government to strip ordinary people of their rights. In his Heller dissent, Stevens used shoddy reasoning to form framework that flatly rejected the idea of an individual right to bear arms for nonmilitary purposes. In his Citizens United dissent, he concluded it was fine for Congress to protect itself from criticism by barring groups from running ads that named a politician close to Election Day.
And in the decision that perhaps most obviously sided with the powerful against the powerless, Stevens voted with the majority in Planned Parenthood v. Casey, thus upholding most of Roe v. Wade, a legally indefensible ruling that rejected the humanity of the most vulnerable. Stevens was nominated to the Supreme Court by President Gerald Ford, a Republican, but his decisions tended to please those on the left.
We praise Stevens’ public service, and treat his memory politely. But we also treat with sufficient respect our duty to weigh his jurisprudence. And from him, on that most weighty of matters, we strongly dissent.
The Washington Examiner