When John Paul Stevens was nominated by Gerald Ford to replace William O. Douglas, few could have predicted that the moderate Republican Stevens would in many respects fill Douglas' role as the irascible liberal giant on the Court. Yet as his recent article about his opposition to the death penalty reminds us, during his long and often idiosyncratic career, Stevens emerged as the Court's foremost critic of unequal treatment under the law. In particular, he became the Court's strongest critic of the increasingly formalistic approach to race taken by a majority of his colleagues and was always more attentive to gender inequality than his country-club Republican pedigree would have suggested.
In both The New York Review of Books article and the concurrence in the 2008 case Baze v. Rees in which he first announced his changed position, Stevens' objections to the death penalty focus on the inequities and irrationalities in how the sentence is applied. The Supreme Court's increasingly rightward shift has led to several decisions eroding procedural protections in the application of the death penalty: "Victim impact" statements have been held to be admissible, prosecutors are allowed to create an unrepresentative sample of the community by striking any juror who opposes the death penalty (even if he or she expresses willingness to apply it in cases where the law requires it), and the Court has been less willing to police procedural defects such as inadequate counsel and dubious "expert" testimony, resulting in "the exoneration of an unacceptable number of defendants found guilty of capital offenses."
One case in particular has come to symbolize the way in which the Supreme Court has used a symbolic adherence to "colorblindness" as a weapon to ignore the effects of race discrimination in practice. The regrettable 1987 landmark decision in McCleskey v. Kemp, held that application of the death penalty to an African American man was constitutional despite evidence showing that in similar cases, an African American accused of killing a white person was far more likely to receive the death penalty than an African American accused of killing another African American. Stevens dissented in the case and engaged in an ongoing critique of its logic.
The heart of the argument made by the dissenters in McCleskey is that the constitutional prohibition on racial discrimination cannot be merely formal -- the Court has to pay attention to systemic discrimination as well as the discriminatory acts by individual state officials. More than any other justice, Stevens represented this view on the Court following the retirement of justices William Brennan and Thurgood Marshall.
The "war on drugs" is an area of public policy where racial discrimination has been particularly egregious. So the relatively obscure case Armstrong v. U.S. provides an illuminating example of Stevens' criticism of the Court's approach to equal protection. In that case, the Court prevented defendants indicted for offenses involving "crack" cocaine from examining evidence from the files of the U.S. attorney's office. It did so despite the fact that the defendants provided clear evidence of systemic discrimination (as Stevens noted, "While 65% of the persons who have used crack are white, in 1993 they represented only 4% of the federal offenders convicted of trafficking in crack") and provided at least anecdotal evidence of discrimination on the part of the U.S. attorney.
As Stevens explained, combined with McCleskey, the case created what should be a constitutionally intolerable catch-22: Defendants have to provide evidence of individualized rather than systematic discrimination, but the Court then establishes conditions that make proving individualized discrimination impossible. Yet this effective sanctioning of racial discrimination in the criminal-justice system was sanctioned by the other eight justices, including Democratic appointees Stephen Breyer and Ruth Bader Ginsburg.
By 2008, Stevens was compelled to respond to Chief Justice John Roberts' smugly tautological assertion in Parents Involved that voluntary school-integration programs were unconstitutional because "the way to stop discrimination on the basis of race is to stop discriminating on the basis of race." Stevens was appalled by this definitive example of empty formalism. Roberts' invocation of Brown to prevent integration, Stevens argued, was a "cruel irony" that reminded him of "Anatole France's observation: '[T]he majestic equality of the la[w], forbid[s] rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.'" Considering racial classifications intended to uphold a racial caste system as the equivalent of racial classification intended to dismantle systems of segregation is, as Stevens notes, equal-protection formalism at its most cynical and unpersuasive. Brown has been reinterpreted to facilitate the systems of discrimination it was intended to end.
As his shift on the death penalty and affirmative action makes clear, Stevens became more liberal over time. (Stevens started his tenure on the court with conventional conservative views about race, in one case comparing a set-aside program for minority businesses with Nazi citizenship laws.) But that isn't to say that his commitment to equality could not be seen early in his tenure. He has had a consistently excellent record on the rights of women. In the very important 1980 case Harris v. McRae, Stevens dissented from a decision upholding the Hyde Amendments, which excluded abortion from the medical procedures poor women could obtain with federal Medicaid funding. The amendments, Stevens argued, "constitute an unjustifiable, and indeed blatant, violation of the sovereign's duty to govern impartially."
Unlike the majority of his colleagues, he was also attentive to the gender discrimination inherent in lesser regulations of abortion. Mandatory waiting periods, Stevens argued, "rest on outmoded and unacceptable assumptions about the decision making capacity of women," which cannot be constitutionally tolerable. Unfortunately, Stevens' arguments have been in the minority for more than two decades now, with predictably deleterious effects on the reproductive freedom of poor women and women in rural areas.
While far from perfect, John Stevens' tenure on the Court generally resulted in a strong, tough-minded commitment to equality and the rule of law that has been otherwise largely absent for the Court. Let's hope President Barack Obama's new appointees will act to fill the void that Stevens' resignation has left.