Actually, John Paul Stevens Is a Conservative

When a Supreme Court justice announces his retirement—as John Paul Stevens did earlier today—the press immediately launches into its "first rough draft of history" mode, filing endless reams of elegant, elegiac prose on Who He Was and What He Meant. This, of course, is understandable. Most of the content produced to fill the gaping maw of today's 24/7 news cycle is small. The retirement of a Supreme Court justice, on the other hand, is big. Reporters want to rise to the occasion. 

But while the media usually manage to commit plenty of good journalism in moments like these, their affect in the aggregate is probably to compress rather than expand our sense of the outgoing justice's legacy. Readers don't have a lot of time or interest, so amid the flood of retrospectives, they tend to latch onto whichever shorthand, cheat-sheet label gets repeated most frequently. Sandra Day O'Connor was the pioneering moderate. William Rehnquist was the Western federalist. David Souter was the quirky loner. And so on. 

Now that Stevens is exiting the stage, it's quickly becoming clear what his tag will be. "Leader of the liberal wing of the Supreme Court," writes The New York Times. "Chief Justice of the Liberal Supreme Court," adds The New Yorker. "The strongest voice [for liberals]," concludes The Wall Street Journal. In other words, laypeople are being given little choice but to remember the hunched, bow-tied Stevens, 89, as really, really liberal—Dennis Kucinich in robes. 

This would be funny if it weren't so myopic. It's true that after being promoted to the federal judiciary by Richard Nixon and to his current post by Gerald Ford—both Republicans, mind you—Stevens has come in recent years to lead the high court's liberal bloc. The prevailing view is that "there really were two Justice Stevenses," as Richard Fallon, a constitutional law professor at Harvard Law School, recently told Business Week: one who was "a somewhat iconoclastic moderate" and another who was a "great liberal voice." But ultimately Stevens's shifting status has less to do with changes in his judicial philosophy than with changes in the court. While it moved right, he stayed put. As a result, he has played a key role in defining what it means to be a liberal justice in post-Reagan America—even though he isn't really a liberal himself.

Consider Stevens's own words. In a 2007 interview, he told legal journalist Jeffery Rosen that his views hadn't changed since he first donned the robes 1975. "I don't think of myself as a liberal at all," he said, laughing and shaking his head. "I think as part of my general politics, I'm pretty darnn conservative." His judicial hero? Potter Stewart, the Republican centrist and fellow "judicial conservative." More recently, Stevens informed Jeffrey Toobin that he has identified with the Republican Party "ever since my father voted for Coolidge and Harding"; as such, he said, he saw himself as part of a tradition of moderate Republican Supreme Court justices that "goes way back." Gerald Ford, who once attempted to impeach liberal Justice William O. Douglas for endorsing a "hippie-yippie-style revolution," wrote in 2005 that he was "prepared to allow history's judgment of my term in office to rest (if necessary, exclusively) on my nomination 30 years ago of John Paul Stevens to the U.S. Supreme Court." 

This might seem like a paradox at first: the so-called liberal chief justice who insists that he's actually a conservative underneath. But given how judicial liberalism has transformed in response to the recent rise of right-wing originalists like Antonin Scalia and Clarence Thomas, Stevens's stance makes perfect sense. As Rosen writes: "There was a time, years ago in the Warren Court era, when liberal justices like Stevens's predecessor William O. Douglas saw themselves as on a mission to recreate American society along boldlyegalitarian lines by discovering newly minted constitutional rights. But [now] ... judicial liberalism ... has largely become a conservative project: an effort to preserve the legal status quo in the face of efforts by a younger generation of conservatives to uproot the precedents of the past 40 years." The conservatives, in other words, have become the activists—and the liberals have become the conservatives, with "little appetite," as Rosen puts it, "for the old approach." Stevens says it best: "Including myself, every judge who's been appointed to the court since Lewis Powell" [nominated by Richard Nixon in 1971] "has been more conservative than his or her predecessor. Except maybe Justice Ginsburg. That's bound to have an effect on the court."

Stevens doesn't force a one-size-fits-all philosophy on the law; he interprets it through the prism of a particular sensibility. At times, this has led him to politically conservative conclusions, like the court's 1978 opinion letting the FCC punish broadcasters for airing offensive language, or the 2004 opinion refusing to resolve whether the Constitution bars public-school teachers from leading recitations of the Pledge of Allegiance with the phrase "under God." But mostly it's meant that he tends to rule on the side of "restraint," as Brina Milikowsky of the liberal Alliance for Justice puts it, repeatedly defending "the role of the judiciary against the expansion of the executive," the "ordinary American against the encroachment of big business," and the "rights of the accused within the criminal-justice system." As AFJ notes, Stevens "has voted against the government and in favor of the individual more frequently than any other sitting justice." This may not square with the contemporary judicial conservatism of Scalia and Thomas. But in its wariness of government, veneration of the individual, and respect for precedent, it's a kind of conservatism all the same.

The question for legal liberals going forward is whether "merely conserving the achievements of the past" is enough or whether they can instead define a philosophy that is more than just a defense against Scalia-ism. I don't pretend to know the answer. But Stevens, for his part, will be sorely missed. When Ford nominated the Chicagoan to the high court, he didn't ask a single question about abortion. The confirmations were not broadcast on live TV. And Stevens was confirmed by the Senate 98-0. As Ford put it, he was simply looking for "the finest legal mind I could find." The vast gulf between what happened then and what will happen this summer, when the next bloody confirmation battle will begin, tells you everything you need to know about how much the court and the country have changed since Stevens arrived in Washington 35 years ago.