Justice Stevens and Liberty Cont'd

Writing at Townhall, Jacob Sullum takes his turn at debunking the myth that Justice Stevens was a champion of individual rights.

As Supreme Court Justice John Paul Stevens "gradually became the leader of the court's liberal wing," The New York Times reports, "he became increasingly skeptical of claims of government power." According to a Washington Post editorial, "his voice was consistently raised on behalf of those vulnerable to government excesses."

Such descriptions of Stevens, which were common after he announced his retirement last week, are based on a highly selective concern about state power. A closer look at Stevens' record shows he has been anything but consistent in his opposition to government excesses and that in some ways he has become less inclined to protect constitutional rights. ...

When it comes to reining in government excesses, the doctrine of enumerated powers, which says Congress needs specific constitutional authority for its legislation, is at least as important as the protection of enumerated rights. Yet Stevens has consistently opposed efforts to define the limits of the power to regulate interstate commerce, treating it as a blank check that Congress can fill in as it pleases. In 2005, he wrote a decision that said even a single marijuana plant grown by a patient in a state that allows medical use of the drug can be treated as interstate commerce.

In many of the cases where Stevens has sided with the government, he has been opposed by Antonin Scalia and/or Clarence Thomas, justices who have undeserved reputations as authoritarians hostile to civil liberties.

UPDATE: Tim Carney: Justice Stevens was no champion of the little guy.

President Obama said his nominee to replace John Paul Stevens on the Supreme Court would "be someone who, like Justice Stevens, knows that in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens."

Tell that to the "ordinary citizens" of New London, Conn., whose homes were stolen by the government for use by real estate developers at the request of the largest drug company in America -- with the approval of Justice Stevens. ...

[I]n practice, liberalism often isn't really about the "little guy" as much as it is about central planning. The company and the city, Stevens wrote, had exhibited enough "thorough deliberation" and had "carefully formulated" a "comprehensive" plan -- and that was enough.

The hotel was never built, the bulldozed neighborhood is still rubble, and Pfizer has announced it is ditching the New London facility in the wake of its merger with Wyeth.

Also, Podcast: "Justice Steven's Undue Deference" featuring Cato's John Samples



UPDATE 2: David Harsanyi takes a look at Patrick Leahy's strategy for the upcoming SCOTUS hearings.

So, Leahy, who believes Stevens is a model jurist, will likely ask many piercing questions (How evil is corporate America? Nixon evil or merely Nazi evil?) in defense of average Americans.

But I wonder if the average American believes, like Justice Stevens, that an unelected federal agency like the Environmental Protection Agency should bypass Congress and, by fiat, regulate carbon dioxide, a chemical compound that permeates everything, without any consideration for cost or imposition or the electorate? ...

Do they believe, like Justice Stevens, that government should continue to use racial quotas and preferences rather than allow citizens the freedom to succeed or fail on their own merits — or even their own luck — rather than color of their skin? ...

It's no mystery why Leahy would want to turn the tables on conservatives and make the confirmation hearing about corporations rather than the Constitution or the reckless manner in which justices like Stevens treat it. I would do the same if my agenda's success was intricately tied to the pliability of the document.