How a Misstep Can Shape the Supreme Court

By WILLIAM J. WATKINS JR. July 31, 2019

John Paul Stevens died in mid-July at the age of 99. He was the third-longest-serving justice on the U.S. Supreme Court before his retirement in 2010. Nominated by Gerald Ford in 1975, the Senate confirmed Justice Stevens by a 98-0 vote.

Looking back on the events of his presidency, Ford expressed a willingness “to allow history’s judgment of my term in office to rest (if necessary, exclusively) on my nomination … of John Paul Stevens to the U.S. Supreme Court.”

If we take Ford up on his offer, his presidency must be viewed as a colossal failure. During his service on the court, Justice Stevens proved a reliable vote for the court’s left wing and chose his time to retire so Barack Obama could appoint his replacement.

An example of Stevens’ jurisprudence is Gonzales v. Raich (2005), in which the court decided, in effect, that Congress can regulate any activity that possibly could affect the national economy.

At issue in Raich was congressional prohibition of all medicinal cannabis. The case revolved around proper understanding of Article I, Section 8, Clause 3 of the U.S. Constitution, the Commerce Clause, which gives Congress the power “To regulate Commerce with foreign Nations, and among the several States.”

In the Raich case, however, the cannabis at issue was grown using only soil, water, nutrients, tools and supplies made or originating in a single state, never crossed state lines and never was sold in the stream of commerce.

Writing for the majority, however, Justice Stevens held that such intrastate activity can be regulated by Congress because it has the potential to affect national economic markets. Under this reasoning, the growing of a single tomato plant in a container on your balcony is economic activity and subject to congressional regulation. Congress could even prohibit a child from painting a picture to hang in his room because if all children created their own art, this could materially affect the interstate market for art. The opportunities for federal intervention and regulation are boundless under Justice Stevens’ Raich opinion.

Stevens also put private property rights in jeopardy with his majority opinion in Kelo v. New London (2005). At issue was a portion of the Fifth Amendment that permits government to take property for “public use” upon paying “just compensation” to the owner.

In Kelo, Stevens decreed that government may take property from one person and transfer it to another if government believes the new owner will make more productive use of the property. Stevens ignored the plain meaning of the constitutional text, which permits the taking of property only if the public has a right to employ it (for a public road or park, for example). By essentially deleting the “public use” requirement from the Fifth Amendment, Stevens invited the powerful and politically connected—in the case of Kelo, a commercial real estate developer—to lobby government for someone else’s private property, leaving small property owners such as Susette Kelo with no recourse.

Americans also can thank Stevens for the longevity of the 1973 Roe v. Wade decision, which claims the Constitution contemplates a right to have an abortion.

Honest progressives have long recognized that Roe rested on faulty constitutional reasoning. As Harvard Law professor Laurence Tribe, who served as a judicial adviser to President Obama, has observed: “One of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found.”

Nonetheless, in 1992 when the court had the opportunity to overturn Roe in Planned Parenthood v. Casey, Stevens worked behind the scenes to cobble together a court majority to preserve the constitutional right to abortion—a “right” created by judicial policymaking and resting in shadow zones of the Bill of Rights.

Stevens always claimed he was a “judicial conservative” because of his high regard for court precedents. Had he been a true judicial conservative, he would have had a higher regard for the words of the Constitution and the intention of its Framers.

Independent Institute