John Paul Stevens

Some of us grew up with Mozart envy, feeling over the hill when we were barely out of our teens. But then here’s John Paul Stevens who has made his mark in his 80s. He announced he would retire at the end of this Supreme Court term, when he will be 90 years old, convinced that he is aging because his tennis game is slowing down.

Stevens has been something of a surprise. He joined the Court as a conservative member, usually siding with other conservatives on the Court against its liberal wing. He cut his teeth fighting affirmative action and supporting harsh treatment of criminal suspects. But Stevens kept growing on the bench – a term conservatives hate, but growing is the right word. Serving on the Supreme Court one sees the best and the worst from all over the country. One sees recurring problems. One sees how solutions don’t live up to their PR. And Stevens was always big enough to learn and to grow.

Much of our protections for criminal procedure – whatever the conservatives on this Court have left of them – grew out of the Court’s constant exposure to the unreliable confessions extracted by threats and lies. The Court learned as far back as the 1930s that the third degree which we rightly condemn when used in other parts of the world was doing considerable damage right here in America. And it learned that power put in the hands of police and other public officials is easily abused with terrible consequences for the innocent, for those who could be saved, and for the society that has to deal with the consequences of official abuse. Over the last sixteen years:

Stevens led the Court in arguing that courts had an obligation, he phrased it more modestly to win a majority, to look at new evidence showing that a convict was in fact innocent before putting him to death.

He argued that a state had no proper purpose in refusing to let a prisoner have DNA that remains in state files tested where it could acquit the innocent, and identify the guilty.

And most recently he led a majority of the Court in beating back an effort to turn back to the dark ages of the third degree, now in the form of torture practiced on people accused of terrorism, whether merely swept up in the dragnet of a war zone, turned over by perfidious bounty seekers or otherwise in American custody.

Stevens had only recently joined the Court when it decided Regents of the University of California v. Bakke, the court’s first big brush with affirmative action. Stevens wrote a dissent, joined by Chief Justice Burger and by Justices Stewart and Rehnquist, taking the position that the University program violated a federal statute. Perhaps because he had come to understand how intractable the problems were, how common assumptions and social practices routinely undervalued African-Americans, by the 90s he had become a supporter. In a case testing a federal effort to help minority contractors, Stevens wrote that the Court had disregarded “the difference between a “No Trespassing” sign and a welcome mat.”

In his 80s he has become the Court’s most reliable voice for fairness and justice, for the very notion that the law, and the Constitution, are not indifferent to matters of human decency.

John Paul Stevens will be missed.

This commentary was broadcast on WAMC Northeast Report, April 13, 2010.

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