Topic: Law and Civil Liberties

Is The Washington Post Mocking Justice Stevens?

Justice John Paul Stevens has announced that he will retire from the Supreme Court this summer.

My Cato colleagues are weighing in on his “checkered” tenure.   Tim Lee writes, “if you enjoy your iPod and your uncensored Internet access, you have Justice Stevens to thank.”  I certainly appreciate Stevens’ contributions in that area.

On the other hand, Ilya Shapiro laments “the errant jurisprudential path that Justice Stevens blazed so honorably,” and charges that “Stevens admittedly and unabashedly asserted his own policy preferences instead of following the law.”  

When I picked up Saturday’s Washington Post, I wondered if its staff was trying to make the same point.  The front page contains excerpts from three opinions Stevens wrote while on the Court.  (I could not find them on the Post’s web site, so I can’t furnish a link.)  The first is from Bush v. Gore (2000):

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.  I respectfully dissent.

The second is from Baze v. Rees (2008):

[The death penalty is] becoming more and more anachronisitic… I have relied on my own experience in reaching the conclusion that the imposition of the death penalty “represents the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes.”

And finally, from Citizens United v. FEC (2010):

While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.

The first excerpt decries judges who decide cases based on their personal preferences, rather than what the law says.  The other two excerpts show Stevens incorporating his personal preferences into his rulings.

So we must consider the possibility that someone at The Washington Post subtly wanted to poke fun at Justice Stevens.  Unless it was inadvertent, which would make it even more amusing.

John Paul Stevens, Defender of High-Tech Freedom

I’m saddened to hear of the retirement of Justice John Paul Stevens. Whatever you might say about his jurisprudence in other areas, one place where Justice Stevens really shined was in his defense of high-tech freedom.

Justice Stevens wrote the majority opinion in some of the most important high-tech cases of the last four decades. In other cases, he wrote important (and in some cases prescient) dissents. Through it all, he was a consistent voice for freedom of expression and the freedom to innovate. His accomplishments include:

  • Free speech: Justice Stevens wrote the majority decision in ACLU v. Reno, the decision that struck down the infamous Communications Decency Act and clearly established that the First Amendment applies to the Internet. In the 13 years since then, the courts have repeatedly beat back attacks on free speech online. For example, Justice Stevens was in the majority in ACLU v. Ashcroft, the 2004 decision that struck down another attempt to censor the Internet in the name of protecting children.
  • Copyright: Justice Stevens wrote the majority opinion in the 1984 case of Sony v. Universal, the case in which the Supreme Court upheld the legality of the VCR by a 5-4 vote. The decision, which today is known as the “Betamax decision” after the Sony VCR brand, made possible the explosion of digital media innovation that followed. When the recording industry tried to stop the introduction of the MP3 player in 1997, the Ninth Circuit cited the Betamax precedent in holding that “space shifting” with your MP3 player is permitted under copyright’s fair use doctrine. The iPod as we know it today probably wouldn’t exist if Sony had lost the Betamax case. Justice Stevens also wrote an important dissent in the 2003 decision of Eldred v. Ashcroft, in which he (like the Cato Institute) argued that the Constitution’s “limited times” provision precluded Congress from retroactively extending copyright terms.
  • Patents: The explosion of software patents is one of the biggest threats to innovation in the software industry, and Justice Stevens saw this threat coming almost three decades ago. Stevens wrote the majority decision in the 1978 case of Parker v. Flook, which clearly disallowed patents in the software industry. Three years later, Stevens dissented in the 1981 case of Diamond v. Diehr, which allowed a patent on a software-controlled rubber-curing machine. Although the majority decision didn’t explicitly permit patents on software, Stevens warned that the majority’s muddled decision would effectively open the door to software patents. And he has been proven right. In the three decades that followed, the patent-friendly U.S. Court of Appeals for the Federal Circuit has effectively dismantled limits on software patents. And the result has been a disaster, with high-tech firms being forced to spend large sums on litigation rather than innovation.

So if you enjoy your iPod and your uncensored Internet access, you have Justice Stevens to thank. Best wishes for a long, comfortable, and well-deserved retirement.

Justice Stevens’ Legacy: Unquestionable Integrity, Questionable Legal Judgment

John Paul Stevens, the oldest-ever and (by the end of the term) second-longest-serving Supreme Court justice, has had a long career that, judging by his fitness regimen—the envy of men much younger than he—could have continued for many years yet.  Justice Stevens is to be commended for his record of service in a variety of positions in the public and private sector.

Unfortunately, the jurisprudential legacy he leaves behind is much more checkered than his personal integrity and professionalism: Justice Stevens “grew” from his country-club Republican roots to becoming the Court’s liberal lion.  While a friend of liberty in certain limited circumstances, he ultimately hangs his hat on supporting government action over the rights of individuals in contexts ranging from property rights (Kelo v. New London) to the Second Amendment (D.C. v. Heller) to free speech (Citizens United and Texas v. Johnson, the flag-burning case) to executive agency power (Chevron).  And even on those issues where friends of liberty can disagree in good faith as a matter of policy, such as abortion and the death penalty, Stevens admittedly and unabashedly asserted his own policy preferences instead of following the law.

Each of the candidates on the “short list” to replace Stevens—most notably Elana Kagan, Diane Wood, and Merrick Garland—has pluses and minuses in terms of their approach to the law (not to mention politically).  But in any case this summer’s confirmation hearings will again show the American people the different approaches to the judicial role.  At a time when the constitutional interpretation looms large in an electoral context—not least with the growing discomfort over the massive new health reform—voters will be able to see the dangerous consequences of following the errant jurisprudential path that Justice Stevens blazed so honorably.

Stevens Retirement Ill-timed for Dems

The retirement of Justice John Paul Stevens at the end of the Supreme Court’s current term, and the coming nomination and confirmation process, will doubtless further complicate and delay the Obama administration’s already complicated agenda during this mid-term election year. And the timing cannot be good news for Democrats running for reelection, because the process will serve to highlight their understanding of the Constitution as a document authorizing all but unlimited government in a year in which, thanks to the Tea Party movement, the Constitution is likely to have a prominent place in reelection debates.

Regarding a replacement for Justice Stevens, the nominee will almost certainly come from the Democratic Party’s liberal ranks. As a result, the ideological complexion of the Court is not likely to change, since Justice Stevens, especially in recent years, has been the most reliable liberal vote on the Court, whether on abortion, campaign finance, gun rights, affirmative action, or several other hot-button issues. As the press reviews those decisions over the coming weeks and months, therefore, controversy over the Court will be in the air, adding to what already promises to be a very political year.

REAL ID Continues Its Long, Slow Failure

REAL ID continues its long, slow failure. The federal government’s national ID plans continue to bash against the shoals of state and popular opposition.

Late last month, the governor of Utah signed H.B. 234 into law. The bill prohibits the Utah driver license division from implementing REAL ID. That brings to 25 the number of states rejecting the national ID law, according to the Tenth Amendment Center.

And the State of Nevada, one of the few states that had been working to get in front of REAL ID, is reconsidering. With wait times at Las Vegas DMVs reaching two to four hours, the legislature may soon allow a temporary REAL ID implementation measure signed last year to lapse—this according to the Ely (NV) News.

Congress has attempted to circumvent the growing state opposition to REAL ID with the now-stalled PASS ID legislation. It basically would rename REAL ID so as to nullify the many state resolutions and laws barring implementation of the national ID law because they refer to the May 2005 “REAL ID” law specifically. But PASS ID is the same national ID, it has all the privacy issues of REAL ID, and its costs would be as great or greater than REAL ID.

That doesn’t mean national ID supporters in Congress won’t try to sneak the REAL ID revival bill into law sometime later this year, of course …

A Government of Laws, Not Men

In the government of this commonwealth… the executive shall never exercise the legislative [or] judicial powers… to the end it may be a government of laws and not of men. – The Constitution of Massachusetts, 1780, drafted by John Adams, Samuel Adams, and James Bowdoin

In contrast, consider today’s news:

The Obama administration has taken the extraordinary step of authorizing the targeted killing of an American citizen, the radical Muslim cleric Anwar al-Awlaki, who is believed to have shifted from encouraging attacks on the United States to directly participating in them, intelligence and counterterrorism officials said Tuesday.

Americans, this is what arbitrary government looks like. As a simple matter of fact, even George III was never this arbitrary. Even he didn’t make individual colonists’ lives depend merely on an act of his own will.

Indeed, if I wanted a perfect example of what a government of men, not laws, looked like, I could just glance at the newspapers today and see what our government is doing right at this moment.

Do not respond that this power will only be used wisely and sparingly. Doing so just admits my basic point, namely that we now depend purely on the wisdom and restraint of our individual leaders. We depend on their wisdom and restraint – to check their own worst impulses. All power, both for and against, is contained in one individual. No legal processes, and no guarantees, separate us from them. And the stakes are life or death.

Likewise, do not respond that this power will only be used against very bad people. Again, doing so just admits that we now depend on an unreviewable judgment of character, not on a legal system with formal procedures and safeguards. Even in the dark days of the Cold War – even during the Revolution itself – we never ceded so much power to so few.

To those who think our leaders’ prudence is a sufficient check on their own power, consider this. Let’s both grant that Barack Obama is basically a decent, well-meaning guy (apart from the fact that a decent, well-meaning guy would never want a power like this). If he’s a decent guy, then perhaps he’ll use his newly claimed power wisely, insofar as such an atrocious power can be used wisely. But on the other hand, if I were truly evil, and if I wanted to assassinate with impunity all the people I hated… Suddenly now I’d be very interested in running for president.

Glenn Greenwald has a lot more on the issue, including evidence that Barack Obama was apparently against this power… before he was for it.

Can We Be Both Up from Slavery and on the Road to Serfdom?

At Reason.com I argue that libertarians are wrong to look back at some point in the past for a golden age of liberty, and especially wrong to write paeans to the gloriously free 19th century without mentioning the little matter of 19 percent of Americans being held in chains.

For many libertarians, “the road to serfdom” is not just the title of a great book but also the window through which they see the world. We’re losing our freedom, year after year, they think….

Has there ever been a golden age of liberty? No, and there never will be. There will always be people who want to live their lives in peace, and there will always be people who want to exploit them or impose their own ideas on others. If we look at the long term—from a past that includes despotism, feudalism, absolutism, fascism, and communism—we’re clearly better off. When we look at our own country’s history—contrasting 2010 with 1776 or 1910 or 1950 or whatever—the story is less clear. We suffer under a lot of regulations and restrictions that our ancestors didn’t face.

But in 1776 black Americans were held in chattel slavery, and married women had no legal existence except as agents of their husbands. In 1910 and even 1950, blacks still suffered under the legal bonds of Jim Crow—and we all faced confiscatory tax rates throughout the postwar period.

I note that “I am particularly struck by libertarians and conservatives who celebrate the freedom of early America, and deplore our decline from those halcyon days, without bothering to mention the existence of slavery,” and I name a couple of examples. When we talk about how free Americans were in the 19th century, we should remember that many millions of Americans look back on those years and say

“My ancestors didn’t have the right to worship in their own way. My ancestors didn’t have the right to keep and bear arms. My ancestors didn’t have the protection of centuries-old legal procedures. My ancestors sure as heck didn’t have the right to keep what they produced, or to pursue an occupation of their choice, or to enter into mutually beneficial trades. In fact, my ancestors didn’t even have the minimal right of ‘the absence of physical constraint.’”

Read the whole thing.

Postscript: In late-breaking news after the Reason article was written, Gov. Robert McDonnell (R-VA) has issued a proclamation declaring April “Confederate History Month.” As politicians often do with news they’re not really publicizing, McDonnell posted the proclamation on his website Friday, but no one noticed until Tuesday. The proclamation urges Virginians to “understand the sacrifices of the Confederate leaders, soldiers and citizens during the period of the Civil War” but does not mention slavery. Virginia’s last Republican governor, in issuing a proclamation remembering the Civil War, had at least acknowledged reality:  ”The practice of slavery was an affront to man’s natural dignity, deprived African-Americans of their God given inalienable rights, degraded the human spirit and is abhorred and condemned by Virginians … Had there been no slavery, there would have been no war.” Amazingly, he was criticized for that simple and obvious statement, as was I when I quoted it a few years back.