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Justice John Paul Stevens, Supporter of Free Speech, To Retire

Speculation as to his successor is rampant

Justice John Paul Stevens, Supporter of Free Speech, To Retire

WASHINGTON, D.C.—John Paul Stevens, the successor to free speech absolutist William O. Douglas, has announced that he will retire from the nation's highest court this summer, on the day after it completes its 2009-2010 term.

Stevens, who will be 90 on April 20, was considered a conservative when he took his seat on the court on December 17, 1975.

"In terms of his significant decisions, Stevens was appointed by President Ford as a moderate Republican judge," noted attorney and constitutional scholar Reed Lee. "He came from the Seventh Circuit, where he had written a decision that was seen as important in preventing the equal rights amendment from passing. Before that, Stevens had served on a commission looking at corruption on the Illinois Supreme Court, and that's how he came to public prominence. He was a lawyer in private practice at that time, and his service on the commission led to his Seventh Circuit appointment."

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"He was certainly conservative compared to his predecessor," Lee continued, "and he argues that he pretty much stayed the same and that the court kind of shifted to the right, making him appear to be on the left, well to the left of center, and that's largely true, but he was always something of a maverick. Even early on, Stevens was always independent. He always had an independent analysis, and sometimes I thought his view of things was the right view of things."

One of Stevens' opinions with which Lee strongly disagrees, however, was the seminal adult zoning case, Young v. American Mini Theatres Inc., where in 1976, a majority of the court (with Justice Powell's concurrence) held that the city of Detroit was within its proper powers to add "adult uses" to its "Anti-Skid Row Ordinance," thus allowing the city to prohibit adult businesses to be located within 1,000 feet of any two other "regulated uses" such as billiard halls and transient hotels, and within 500 feet of a residential area.

"That [opinion] started this whole battle we've been having over secondary effects," Lee noted. "That was, I think, during his first full term on the court, but it shows how conservative he was when he started. I don't know if he would rule the same way in that case again, and I'm not sure that he's sure that he would. He has subsequently moved to a more speech-protective position."

For example, there's Stevens' lone dissent in Ashcroft v. ACLU, the first COPA case, where Stevens came out strongly against attempting to apply "community standards" to the internet.

"Appeals to prurient interests are commonplace on the Internet, as in older media," Stevens wrote in the 2002 COPA I decision. "Many of those appeals lack serious value for minors as well as adults. Some are offensive to certain viewers but welcomed by others. For decades, our cases have recognized that the standards for judging their acceptability vary from viewer to viewer and from community to community. Those cases developed the requirement that communications should be protected if they do not violate contemporary community standards. In its original form, the community standard provided a shield for communications that are offensive only to the least tolerant members of society. ... In the context of the Internet, however, community standards become a sword, rather than a shield. If a prurient appeal is offensive in a puritan village, it may be a crime to post it on the World Wide Web."

Also, according to Lee, one of Stevens' least popular opinions—in Gonzales v. Raich, which upheld the federal government's power under the Commerce Clause, first affirmed in the 1942 case Wickard v. Filburn, to prevent the growing of medical marijuana in California—might easily serve to support a Supreme Court rejection of challenges to the recently passed health insurance reform bill.

"I think the Supreme Court got it right in Wickard v. Filburn, and I think it's reaffirmed it on a number of recent occasions, Raich being the chief of them," Lee opined, "and it's going to face it again if these state AGs [attorneys general] follow through and say it's unconstitutional, and that the federal government has never before forced anybody to buy anything from a private company. The people that say that, when asked, 'Well, is it legitimate for the state of, say, Illinois to require me to by a smoke detector for my residence even though the state won't sell it to me; I've got to go to the private market to get that,' virtually every one of these AGs will say, 'Yes, that's legitimate.' So then it becomes a distinction between what the state can do and what the feds can do, and that gets to the Commerce Clause, and that gets right back to Wickard v. Filburn."

Of course, as soon as a justice announces retirement, pundits immediate begin handicapping who will be the nominee to fill his or her place. And while such names as Solicitor General Elena Kagan and Seventh Circuit judge Diane Wood seem to be among the front runners, Lee has his own favorite.

"I think Kathleen Sullivan, now at Stanford, should go on the Supreme Court," Lee argued. "She's worked with the ACLU; she's been a law professor at Stanford; she was dean of Stanford Law School for a while; she passed that torch on to devote time to a center which focuses on First Amendment issues. She has worked on Supreme Court cases. She was at Harvard before Stanford. Larry Tribe, long a professor of constitutional law at Harvard, calls her the best student he ever had, and they worked together for a long time. So she's my own hands-down favorite. ... She's unquestionably a liberal, and she would be portrayed as a fairly extreme one—and she's also an out-of-the-closet lesbian."

"Diane Wood would be a good justice, but she will be more moderate than some others might be," he continued. "Elena Kagan I personally think would make a very, very good and a very speech-protective justice. A lot of people are bent out of shape about the brief she wrote in [U.S. v.] Stevens [involving sale of dog-fighting videos], but in that case she was just doing her job in defending a federal statute. I understand she wrote a law review article taking a position quite similar to the position I had taken in the amicus briefs in Extreme Associates. ... suggesting that exceptions to free speech are not absolute; that if something falls within the category of 'unprotected', it's expression that's not unprotected against any kind of government intervention; it's just unprotected against certain kinds. And that's important because if that's right, and we go back and look at why obscenity is one of those unprotected areas, I think we come to the conclusion that the only remaining legitimate principles why obscenity is regulable, at least as to adults, is to prevent offense, and that means that obscenity law is basically restricted to situations that don't involve consenting adults."

One other excellent choice who's been mentioned as a "third tier" possibility is Eleventh Circuit Judge Rosemary Barkett. Barkett, it will be remembered, authored an excellent 2003 decision upholding the speech rights of strip clubs in Peek-A-Boo Lounge of Bradenton v. Manatee County, Florida; was a dissenter in the circuit's final decision (before her Supreme Court cert petition) in 2005 in the Sherri Williams sex-toy case; and voted with the majority in the Eleventh Circuit's ruling in U.S. v. Michael Williams in 2006 to strip out a section of the PROTECT Act which criminalized the non-commercial pandering of images of "virtual child porn" and of non-obscene actual children. (Sadly, that decision was overturned by the Supreme Court.)

Stevens' retirement, which commences the day after the current Supreme Court term's final ruling is delivered, may cause a slight problem for President Obama, since unlike the retirement of Sandra Day O'Connor, which was stipulated to take effect only after her replacement was confirmed by the Senate, if the candidate's confirmation hearings drag on into the fall, the 2010 Court term may begin with only eight sitting justices, only three of whom are reliably liberal. And there are already early indications that Republicans intend to stall the confirmation hearings as long as possible.

"The public is deeply concerned about the future of our country, and I expect that the American people will watch these proceedings more closely than ever before," wrote Sen. Jefferson Beauregarde Sessions III (R-Ala.), the Senate Judiciary Committee's ranking member, in a press release. "There is much at stake, as the court's interpretation of the Constitution in the coming years could significantly affect the implementation of domestic polices approved by the president and Congress over the past year. I hope I will be able to support the individual selected by the president, as I have a majority of his judicial nominees. But, as I have said before, I cannot and will not vote for a nominee with a record that fails to demonstrate a commitment to the Constitution, the rule of law, and the oath of a judge."

"Every president has an obligation to nominate judges who understand and are committed to their proper role in our system of government," echoed Sen. Orrin Hatch (R-Mormon Country). "As I have said for many years, someone who would be an activist judge, who would substitute their own views for what the law requires, is not qualified to serve on the federal bench. The confirmation process should be fair and thorough, and the president's nominee should be judged by this standard."

Since news of Stevens' resignation is still fairly new, many of the conservative religious groups haven't had a chance to weigh in yet on the issue ... but some have.

"The American people are fed up with President Obama's left-wing agenda and will make their frustration known at the polls," announced the Judicial Crisis Network's chief counsel, Carrie Severino. "But he still has one ace up his sleeve: packing the Supreme Court with rubber stamps instead of judges. To an activist judge, the Constitution represents an inconvenient truth that they will distort, ignore, or defy to push their radical liberal agenda."

"While there's certain to be much debate about Justice Stevens' replacement, there is one thing that is clear: President Obama is likely to name a nominee who will embrace an extremely liberal judicial philosophy," opined Jay Sekulow, head of the Pat Robertson-founded conservative law group American Center for Law and Justice. "Make no mistake about it: This appointment really represents more than just replacing one vote on the court. With a replacement who is likely to serve for 30 or 40 years, it's clear this replacement will have a long-term impact on judicial philosophy and likely play a determining factor in decisions for decades to come."

No matter who Obama's nominee is, conservatives and fundamentalists will oppose that person unless he/she espouses such principles as overturning Roe v. Wade, deporting all undocumented immigrants and opposing implementation of the recently passed health insurance reform act. But with the unprincipled antagonism that congressional Republicans have demonstrated for the past 15 months to just about every initiative the president has proposed, Obama would be wise to pick a nominee even more liberal, or at least more free-speech oriented, than Justice Stevens, and let the Republicans continue their "Party of 'No'" stance even as the public sees that liberals can be just as law-abiding and patriotic as Republicans claim to be—but aren't.






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Reed Lee
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