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Former Supreme Court Justice John Paul Stevens, who died yesterday at the age of 99, is routinely described as a "liberal champion," "the outspoken leader of the court's liberal wing," and "the court's most liberal justice." Those quotes are all from Linda Greenhouse's New York Times obituary, but they reflect a journalistic consensus.
In some respects, the "liberal" label is apt, at least as that descriptor is understood in contemporary American politics. But in several important ways, Stevens not only failed to defend but actively undermined principles that are conventionally viewed as liberal. His liberal credentials are even less impressive if you define the term in the classical sense, implying a general skepticism of government power and consistent support for civil liberties.
Stevens opposed the death penalty, supported affirmative action and abortion rights, and resisted attempts to try terrorism suspects before military tribunals or detain them indefinitely without charge or recourse to the federal courts. But in cases involving the Fourth and First amendments, he was far from a "liberal champion."
Stevens played a significant role in whittling away at the Fourth Amendment's ban on "unreasonable searches and seizures" to facilitate the war on drugs. He sided with the majority in decisions saying that a sniff by a drug-detecting dog is not a search, that police may search closed containers in cars and observe backyards from the air without a warrant, that a suspected drug smuggler can be detained until she defecates under supervision, and that a driver's unusually long wait at a stop sign justifies stopping him and peering into his car. He dissented from a 2001 decision that said police need a warrant to conduct infrared surveillance of a home, and in 2005 he wrote a decision that allowed police to use drug-sniffing dogs during routine traffic stops.
Nor is Stevens' record on freedom of speech especially liberal. He wrote both the 1978 decision that upheld regulation of broadcast indecency and the 1997 decision that overturned regulation of online indecency. He voted to uphold censorship of student newspapers and to overturn censorship of student banners. In 1989 and 1990 he dissented from decisions overturning state and federal bans on flag burning. In 2010 he angrily dissented from a decision that said people organized as corporations, including nonprofit interest groups, have a right to talk about politics, even at election time.
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