He wasn’t a “stealth liberal” on the Court from the get-go, like David Souter; and he is not identified with a major decision that still makes conservatives howl, like Harry Blackmun, the author of the majority opinion in Roe v. Wade. Still, John Paul Stevens, who has died at the age of 99, became to conservatives something of the archetype of the liberal Trojan horse jurist over the course of his 35 years on the Supreme Court (the third-longest tenure in history). Appointed by Gerald Ford to SCOTUS in 1975, Stevens was eventually acknowledged as the leader of the liberal wing of the Court, and thus a living testament to the hypothesis that Republican presidents had (wittingly or unwittingly) betrayed The Cause by handing lifetime appointments to conservatism’s ideological enemies.
Now, you can certainly argue, as Jeffrey Toobin does in his obituary of Stevens, that this justice’s reputation for liberalism owes as much to the rightward trend in the composition of the Court — and for that matter, in the Republican Party — over the decades since his appointment. It’s certainly true that the ideological weight carried by particular issues that came before SCOTUS during Stevens’s tenure changed. His most famous opinion was probably the one he delivered in Chevron v. Natural Resources Defense Council in 1984, establishing the right of federal agencies to interpret their own statutory powers. Over time, “Chevron deference” became something of a devil figure for conservatives, who accused the Court of enabling a permanent deep state of all-powerful bureaucrats bent on expanding government. Stevens was also perhaps the Court’s most adamant defender of the strict separation of church and state. But he joined SCOTUS at a time when the conservative Evangelicals who now are horrified by that doctrine were its staunchest supporters. Toward the end of his tenure, Stevens also shocked conservatives with his dismissal of gun rights in a dissenting opinion in D.C. v. Heller. That wasn’t a defining issue for Republicans or for conservatives back in the day.
Perhaps most important, John Paul Stevens was the first Supreme Court appointee after Roe established a constitutional right to an abortion. The subject did not even come up in his confirmation hearings, Linda Greenhouse tells us. Seventeen years later, when Roe had its biggest test (to date) in the Planned Parenthood v. Casey case, Stevens was one of five Republican-appointed justices who reaffirmed a woman’s basic right to choose. To the overwhelming majority of conservative activists and Republican politicians who view abortion rights as an abomination, this decision remains the greatest betrayal of all.
So Stevens and his long tenure help explain why conservatives have become so focused on judicial nominations, and why they love Donald Trump for giving them a viselike grip on the judicial selection process. When Stevens granted an interview to the Washington Post, in conjunction with the publication of his memoir earlier this year, he reiterated his opposition to gun rights. The Heritage Foundation’s Thomas Jipping concluded that Stevens’s career “shows why the conflict over the kind of judge a president appoints is so important.” The late justice himself was confirmed by a unanimous Senate vote. That won’t happen again anytime in the foreseeable future. People on both sides of the partisan and ideological barricades have come to understand the enormous stakes associated with the composition of the Supreme Court. John Paul Stevens showed you cannot judge a judge by any superficial measurements.
