John Paul Stevens the restrainer

Justice John Paul Stevens has long been labeled, correctly, as the leader of the Supreme Court’s liberal bloc, but I suspect that future historians will refine that distinction a little more carefully. Stevens’s chief contribution has been to lead opposition to the galloping judicial overreach of the court’s conservatives.

It’s that opposition that’s on display in his two best-known dissents: First, in Bush v. Gore a decade ago, then, this year, in the Citizens United case.

In the earlier case, Stevens gave voice to all those who felt queasy, constitutionally no less than politically, about the Supreme Court effectively bestowing the presidency on George W. Bush, in a decision that broke de facto, if not de jure, along the justices' party lines. In his concluding paragraph, Stevens artfully conflated the lack of confidence in Florida’s court shown by the Supreme Court majority with the lack of confidence in the impartiality of the Supreme Court itself that the majority opinion inspired. But the artfulness doesn’t diminish one iota the deep indignation that Stevens voiced at a decision that could only be viewed as an assertion of partisanship by the nation’s highest court. "What must underlie the petitioner’s [that is, the Bush campaign’s] assault on the Florida election procedures," he wrote:

is an unstated lack of confidence in the impartiality and capacity of the state judges who would make the critical decisions if the vote count were to proceed. Otherwise, their position is wholly without merit. The endorsement of that position by the majority of this Court can only lend credence to the most cynical appraisal of the work of judges throughout the land. It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. Time will one day heal the wound to that confidence that will be inflicted by today's decision. One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year's Presidential election, the identity of the loser is perfectly clear. It is the Nation's confidence in the judge as an impartial guardian of the rule of law.

That same skepticism towards judicial overreach suffused Stevens’s dissent in the recent Citizens United decision, which overturned nearly a century of established law to give corporations the right to make direct limitless investments in political campaigns. In his questioning from the bench during oral arguments, and then in his lengthy and impassioned dissent, Stevens was clearly appalled that Chief Justice John Roberts and his right-wing colleagues had inflated a case that raised rather narrow issues so that they could strike down a century of precedents and free corporations from constraints on their political influence that only rightwing ideologues could lament.

Scholars will surely cite Stevens’s dissents as the leading examples of how judicial restraint became the mantra not of conservative justices but of liberal ones during the late 20th and early 21st centuries. And yet this shift, however epochal, has not been sufficiently acknowledged by either the news media or politicians. Indeed, Republican elected officials still get away with ritual condemnations of liberal judicial activism, as though it weren’t the right-wing justices, whom they elevated and supported, who were the real activists. Reacting to Stevens’s retirement announcement today, Senate Republican leader Mitch McConnell said, "As we await the president's nominee to replace Justice Stevens at the end of his term, Americans can expect Senate Republicans to make a sustained and vigorous case for judicial restraint and the fundamental importance of an even-handed reading of the law."

Would that McConnell actually meant what he said. If he did, he’d back a liberal nominee in the tradition of John Paul Stevens.