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John Paul Stevens Didn’t Start As A Great Liberal Justice, But He Became One

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Ian Milhiser is always worth reading, but I think the story he’s telling about John Paul Stevens here — a story Stevens often told about himself — is fundamentally wrong in multiple respects:

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 hippie 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.

The claim that Stevens just stood still while the Court moved right is just not true:

The Martin-Quinn scores — like all political science models of judicial behavior — are imperfect, but I think any serious qualitative analysis shows the same thing. As Milhiser says, he started off with some pretty conservative instincts — but he moved sharply, quickly, and decisively to the left.

To call him the “last great conservative justice,” however, is both unfair and misleading about JPS and much too charitable to actually existing American conservatism of any area. I just don’t see any way in which the label can be anything other than highly misleading. In terms of his voting record, he was to the left of all but a small handful of justices in the last century and a quarter — more liberal than Ruth Bader Ginsburg, who nobody is going to label a “conservative” when she leaves the Court. And, again, it’s not just the votes. Read the excerpts I put into my obit post. These just aren’t views that American conservatives have or have ever had. Calling Stevens a “conservative” is essentially the same kind of wishful thinking that “the ACA is the real conservative health care plan” or “Hillary Clinton is a moderate Republican” are. Whatever you would like American conservatism to be, actual American conservatism is utterly hostile to the underlying principles of the ACA, and it’s hostile to the fundamental commitments to the post-1985 jurisprudence of John Paul Stevens.

To combine the two points, it must also be said that the “no Member of the Court that I joined in 1975 would have agreed with today’s decision” bit in his Parents Involved dissent is a good line, but with all due respect it’s also obvious bullshit. There is absolutely no chance that William Rehnquist would have voted to uphold the integration measures, and Powell, Burger, and probably Stewart and Blackmun would have voted to strike them as well. (As, for that matter, mostly likely would the 1975 version of John Paul Stevens.) I need to do a full post on this, but the Burger Court was a lot more conservative on balance than people think.

I don’t mean any of this as a criticism of Stevens; he was a great justice and I believe in taking “yes” for an answer. It’s not an insult to say that his thinking changed over time, but it did.

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