Justice John Paul Stevens died yesterday at 99 years old. John Paul Stevens was one of the longest-serving Justices of the Supreme Court in American history, 1975 to 2010. He was appointed by the unelected president Gerald Ford who rose to power by appointment and without the benefit of an election after both elected Vice President Spiru Agnew and President Richard Nixon were forced to step down in unrelated criminal scandals.
When unelected Gerald Ford nominated John Paul Stevens, the Senate not only provided individualized “consent” for the pick, the Senate confirmed Stevens unanimously, 98-0. By the time the second elected full term of Richard Nixon was over, Nixon and his successor filled a majority of seats on the Court. Previously, Republican Dwight Eisenhower also got five picks. This is how Democrats lost the majority of the Court all the way back in 1969.
Compare: Barack Obama was elected twice, successfully appointed two Justices, but was denied all “consent” for a third nominee, Merrick Garland in 2016, because Senate Majority Leader Mitch McConnell refused to provide any level of individualized consent whatsoever. Donald Trump appointed Neil Gorsuch who was confirmed by only 54 to 45 after the Republican Senate changed the rules to make it easier to confirm appointments. This is why the Supreme Court has a Republican majority now for fifty years straight.
JOHN PAUL STEVENS QUOTES
John Paul Stevens is legendary for stepping away from Republican ideology and making independent decisions. He became known as a fairly reliable “liberal” on the Court. Last year, he spoke out to say that Donald Trump nominee Brett Kavanaugh was not fit to sit on the Court after Brett responded to sexual assault allegations with outrage blaming “revenge on behalf of the Clintons.”
I’ve changed my views for reasons that have no relationship to his intellectual ability or his record … His performance during the hearings caused me to change my mind … He has demonstrated a potential bias involving enough potential litigants before the Court that he would not be able to perform his full responsibilities.
THE THREE DISSENTS
John Paul Stevens is probably most notorious in the general population for three particular cases that concerned corporate personhood, election law, and gun law, all 5-4 cases and all in opposition to the majority.
In the 2010 case Citizens United v. Federal Election Commission involving the right of a nonprofit to publish a campaign movie in the days before an election, Anthony Kennedy and the 5-4 majority, after kicking the case around for a while, decided they would throw out virtually all regulations on corporate “free speech” — creating a Constitutional right to spend unlimited amounts of money on expensive speech. John Paul Stevens complained about this expansive opinion and reversion of law by the Court:
The Court’s ruling threatens to undermine the integrity of elected institutions across the Nation. The path it has taken to reach its outcome will, I fear, do damage to this institution… Essentially, five Justices were unhappy with the limited nature of the case before us, so they changed the case to give themselves an opportunity to change the law.
As predicted, the result of the ruling and its “corporate personhood” progeny blew up the power of billionaires to secretly fund elections.
In the 2000 case Bush v. Gore, where an unsigned opinion by a 5-4 majority ended the vote count in the State of Florida, handed the Electors to national popular vote loser Republican George W. Bush, and gave him the White House over Democratic candidate Al Gore by a margin of 271 to 266 (where 270 was the minimum number required to “win”), John Paul Stevens became very concerned:
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.
In the legendary 2008 gun case District of Columbia v. Heller striking down a very restrictive DC gun law, Antonin Scalia and a 5-4 majority determined that the Second Amendment had an “operative clause” and a “prefatory clause.”
PREFATORY CLAUSE (or preamble): A well regulated Militia, being necessary to the security of a free State, OPERATIVE CLAUSE: the right of the people to keep and bear Arms, shall not be infringed.
The Court looked first at the operative clause then determined basically that the prefatory clause added nothing to it — the “right of the people” applied individually. John Paul Stevens disagreed, citing then-leading case United States v. Miller from 1939 which permitted gun regulations:
The Court today tries to denigrate the importance of this clause of the Amendment by beginning its analysis with the Amendment’s operative provision and returning to the preamble merely “to ensure that our reading of the operative clause is consistent with the announced purpose.” That is not how this Court ordinarily reads such texts, and it is not how the preamble would have been viewed at the time the Amendment was adopted. (citation omitted)