In general, the resignation of John Paul Stevens was a great loss for the Court. But there are a few issues that bring out his Midwestern conservatism, and the interaction of free speech and patriotic symbols and rituals is one of them. So it's not terribly surprising to see him endorse Samuel Alito's lone dissent in Snyder v. Phelps:
But at a Law Day event this week, Justice Stevens took pains to say that were he still on the court, he would have joined two opinions written by an ideological opposite, Justice Samuel Alito.
“I would have joined his powerful dissent in the recent case holding that the intentional infliction of emotional harm is constitutionally protected speech,” Justice Stevens told the Federal Bar Council, at a Tuesday dinner in New York. (Here's a copy of his speech.)
To clarify, there's nothing contrarian about Stevens agreeing with Alito in the second case, which the Court decided 8-0.
With respect to Phelps, Stevens' arguments closely track his dissent in the flag-burning case Texas v. Johnson. In that case, Stevens was open about the contradiction between his dissent and his general free-speech principles, writing that "this case has an intangible dimension that makes those rules inapplicable." Fortunately, for Stevens these deviations were relatively rare. And lest you think that Stevens' endorsement reflects a broader agreement with Alito, it's important to remember -- as Bravin notes -- that "while on the court Justice Stevens disagreed with no justice more than he disagreed with Justice Alito." I disagree with Stevens about the Phelps case, but I still miss him a great deal.
