In the celebration of Justice John Paul Stevens as he brings his long career on the Supreme Court to an end, it is worth remembering what might seem to be an untypical moment in that career: the flag-burning case of 1989.
Gregory Lee Johnson was convicted in Texas of “desecrating a venerated object,” the flag. When the case went to the Supreme Court, the radical lawyer William Kunstler argued that Johnson’s act was protected by the First Amendment as a form of free expression. Justice Stevens asked Kunstler whether the Government had “any power at all to regulate how this flag is displayed in public places.” Kunstler said he didn’t believe so. “There is no state interest whatsoever?” Justice Stevens asked. Kunstler answered that he saw none. “I feel quite differently,” Justice Stevens said.
The Supreme Court decided the case in Johnson’s favor, by a vote of 5 to 4, finding his act to be protected symbolic speech. Justice Stevens dissented, reading his opinion from the bench with such force that his face reddened. The flag, he said, was “a symbol of freedom, of equal opportunity, of religious tolerance…. It cannot be true that the flag that symbolizes [those ideas] is not itself worthy of protection.”
I mention the flag-burning case not because I agree with Justice Stevens. I find Justice William Brennan’s powerful opinion for the majority entirely persuasive. (In a follow-up case, United States against Eichman in 1990, Justice Brennan’s majority opinion concluded: “Punishing desecration of the flag dilutes the very freedom that makes this emblem so revered, and worth revering.”) But the case says something important about John Paul Stevens. Throughout his career he has mostly been portrayed as a detached, quiet judge. But there are fires of passion in him that blaze up from time to time. That was notably so earlier this year when a 5-to-4 majority overruled a century of law and held that corporations must be given the same freedom of political speech, including contributions, as individuals. Justice Stevens spoke for the dissenters in an 88-page opinion that savaged the majority for deciding broad issues that the parties had not even originally brought to the Court. He concluded:
While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.
Justice Stevens had that rarity, a genuinely independent mind. He could please conservatives, as in the flag-burning case, and liberals, as in the corporate political spending case. When he announced his retirement, he was described, correctly, as the leader of the often-outvoted liberals on the Court. But that position was forced on him by the increasingly strident conservatism of the usual majority, the evident determination of Chief Justice John Roberts and his colleagues—Scalia, Thomas, Alito, and sometimes Kennedy—to move the Supreme Court far to the right on such issues as executive power and affirmative action.
One consistent theme in Justice Stevens’s judicial life was resistance to concentrated power. He wrote for the Court in 1998 striking down the line-item veto, which transferred power from Congress to the president. And he wrote the majority opinion in Rasul v. Bush in 2004, rejecting the Bush administration’s claim that it could detain prisoners at Guantanamo indefinitely without review by federal courts or petition for habeas corpus. The issues in the two decisions were very different. The fear of power was the same.
It makes me unhappy, and uneasy, to see the Supreme Court reduced in the public mind to an on-off switch, everything being reduced to “liberal” or “conservative.” Whether there was ever a golden age when justices were less predictable, less subject to a litmus test, I am not sure. But Justice Stevens has led what the subtitle of a biography due out next month says. Written by Bill Barnhart and Gene Schlickman, it is entitled John Paul Stevens: An Independent Life.
It would be wonderful if the vacancy on the Supreme Court could be filled without the left-right and cliched attitudes of recent years. For one thing, it would be a blessing to see President Obama consider sources of nominees other than the Federal courts. (All nine justices now were promoted from lower Federal courts.) The private bar, law school faculties, state courts, and elected and appointed officials have all been rich sources in the past. President Ford said he picked Justice Stevens on his merits as a lawyer and a human being, and he was telling the truth.