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At 89, Justice John Paul Stevens sees the fruit of his labors

Over 34 years in the Supreme Court, many of the liberal justice's lone dissents have become majority opinions. The most recent example was last week.

April 27, 2009|David G. Savage

WASHINGTON — Justice John Paul Stevens quietly marked his 89th birthday last week by showing once again his powerful influence on the law.

Over the last decade, he has led a series of liberal victories on issues such as the death penalty, gay rights and Guantanamo Bay -- and he has done it on a court that often leans to the right. Many times his views have prevailed, even decades after he staked out his position.

In 1981, he had warned in dissent that the Supreme Court was taking a "dangerous detour" when it said police could search a car whenever they arrested the driver or an occupant. This "massive broadening" of police power would turn ordinary traffic stops into car searches, he predicted.

It took 28 years, but Stevens spoke for a 5-4 majority on Tuesday, setting aside the earlier decision and limiting car searches during an arrest. The 4th Amendment protects the privacy of Americans against "unreasonable searches," and there is no good reason to permit routine searches inside a car just because a suspect is handcuffed and standing outside the car, he wrote.

With patience and persistence, the court's oldest justice has been determined to make U.S. law more fair and humane.

Duke University School of Law Dean David F. Levi noted that Stevens, a Chicago native, was often described as a "maverick or a loner" in the decade after he joined the court in 1975.

"Now that we see the arc of a long career, I think most observers would be struck by his ability to turn his lonely dissents into majority opinions in the fullness of time," he said.

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A maverick's history

In 1989, for example, he dissented when the court upheld the death penalty for murderers who were mentally retarded or under age 18. These defendants deserve to be imprisoned, but they do not deserve the ultimate punishment of executions, he said.

In 2002, he spoke for the court in a decision that abolished executions for the mentally retarded. Three years later, he assigned to Justice Anthony M. Kennedy the 5-4 opinion ending executions for juvenile murderers.

Gay rights followed a similar pattern. In 1986, Stevens strongly dissented when the court upheld a Georgia anti-sodomy law and said gays had no protected rights under the Constitution. Stevens continued to condemn that decision, and in 2003, the court overturned it.

Stevens also led the court in three decisions that rejected the Bush administration's prison policy at Guantanamo Bay. His opinion three years ago in Hamdan vs. Rumsfeld said the United States must abide by the basic standards of decent treatment set out in the Geneva Convention.

Stevens, a World War II veteran, first came to the court as a law clerk in 1947, when justices were reviewing cases involving U.S. military trials of Japanese soldiers. Levi said Stevens brought the experience of that era to his decisions in the Guantanamo cases.

Despite his age, Stevens has given no hint he plans to retire soon. Last year, he moved into a new office in the front of the court that offers a grand view of the Capitol. The office was left vacant after Justice Sandra Day O'Connor retired. Stevens moved in as if to say he meant to be there a while.

Stevens and Justices Ruth Bader Ginsburg and David H. Souter form the liberal core at the court, and while they are often dissenters, they have had some surprising wins lately. In last week's car-search ruling in Arizona vs. Gant, conservative Justices Antonin Scalia and Clarence Thomas signed Stevens' opinion.

"Countless individuals guilty of nothing more serious than a traffic violation" have had their privacy rights violated, Stevens said, adding that this practice must end.

Two weeks earlier, Souter spoke for a 5-4 majority in limiting secret questioning of suspects in federal cases. And in March, Stevens led the court in preserving consumers' right to sue a drug maker if they are badly harmed by a prescription drug. But the winning streak for the liberals may not last.

Last week, the court heard arguments on whether the strip-search of a 13-year-old girl was reasonable. With the exception of Stevens and Ginsburg, the other justices said they were wary of limiting the authority of school officials to search for more dangerous drugs. Stevens had long since staked out a quite different view.

This week, the court will revisit the issue of banking regulation -- and may vindicate a Stevens dissent from two years ago.

Just as the housing foreclosure crisis was unfolding, the high court in 2007 sided with the banking industry and ruled that states may not enforce their fair-lending laws against mortgage lenders who are affiliated with national banks.

Ginsburg spoke for the majority and said "intrusive state regulation" could interfere with banking. Stevens dissented, along with Roberts and Scalia. He said the nation had a "long and unbroken history of dual state and federal authority over banks," adding, "It is especially troubling that the court so blithely preempts [state] laws designed to protect consumers."

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Another example?

Now the issue is back, this time on whether a state attorney general can investigate banks for unfair lending practices. The attorneys general of all 50 states joined the case, arguing that the justices and the Bush administration made a mistake by shielding the banks from state regulation.

"They took 50 cops off the beat and left one sheriff," said North Carolina Atty. Gen. Roy Cooper. "Irresponsible lending helped get us into this mess, and these times call for more oversight and enforcement, not less."

Law professor Arthur Wilmarth, a banking expert at George Washington University, said he hoped the other justices would come to see Stevens was right two years ago. The intervening events should help too. "I suspect they might view the issue somewhat differently now," he said.

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david.savage@latimes.com

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