Two observations about retiring Supreme Court Justice John Paul Stevens are about to become established fact by sheer repetition. The first—that Stevens is the last Protestant on the court—is not true in any meaningful sense. The second—that Stevens didn’t move left, the court moved right—is madness.
While it’s true that there are no other Protestants on the court—now composed of six Catholics and two Jews, making the Supreme Court only slightly less diverse than cable news hosts, 75 percent of whom are Catholic or Jewish, but also include a Scientologist, a Mormon and a gay—it’s difficult to believe Stevens is any kind of Protestant.
Stevens is more like a pre-road to Damascus Saul. Or maybe the late Justice William Brennan.
It has been said that when asked during his confirmation hearings if he would follow his Catholicism or the Constitution, Brennan should have answered: “Neither.” (Only one senator voted against that cheap leprechaun. Guess who!… That’s right: Joe McCarthy.)
Stevens’ overall career-average may be less ridiculous than Brennan’s, but in one respect, Stevens was a standout: He was the most fanatically anti-religious justice in modern times.
In the 1989 abortion case, Webster v. Reproductive Health Services, for example, Stevens argued that a state law that defined life as beginning at conception violated the First Amendment by—yes, establishing a religion. The abortion law, he said, gave “a theological answer to the question of when life begins.” (You’ve all heard of the First Church of When Life Begins, United, haven’t you?)
Fortunately, Stevens didn’t read far enough to see that the Bible also condemns murder generally, or he might have voted to strike down all laws against murder.
In the 2002 school voucher case, Zelman v. Simmons-Harris, Stevens argued that an Ohio program giving poor parents tuition aid to send their children to schools of their choosing also violated the establishment clause. Stevens admitted that the public school system in question was in “crisis” and also that the new schools were freely chosen by the parents.
Still, he said, because the program did not forbid parents from using the tuition payments at religious schools, the state was using “public funds to pay for the indoctrination of thousands of grammar school children in particular religious faiths.” That money should have been used to indoctrinate children in subjects such as animal rights, Gaia theory, anti-Americanism and fisting etiquette!
Speaking as a Protestant, and not a “Protestant,” we’re happy to see Stevens leave the court.
Stevens’ claim that he hasn’t moved left, the court has moved right, if stated during a mental competence hearing, would have earned him a straitjacket and a handful of Thorazine.
But because Stevens’ self-characterization comports with the legal left’s position that the Supreme Court’s failure to enact the entire platform of the Green Party constitutes “conservative judicial activism,” it has been reverently repeated.
It’s true that on a few issues, Stevens didn’t change. He has long found any religious practice not crushed by the government to be an “establishment of religion.” Stevens has also never been an enthusiast of tenuous claims to free speech rights, voting to uphold city restrictions on strip clubs in 1976 and voting to uphold a law that prohibited the burning of the American flag in 1989.
But on many other issues, such as race discrimination, Stevens swung so far to the left that his earlier opinions would be unrecognizable as having been written by the same man.
In 1978, Stevens was not only in the majority in University of California Regents v. Bakke, but he wrote the opinion holding that the school’s race-based admissions program violated Title VII and ordering the university to admit Bakke.
In another case of government race-based classifications, Fullilove v. Klutznick (1980), Stevens ridiculed the idea of race-based “remedies” being applied to every ethnic group under the sun.
Adopting Justice William Rehnquist’s view that the specific history of blacks in America makes their claims unique, Stevens wrote: “Quite obviously, the history of discrimination against black citizens in America cannot justify a grant of privileges to Eskimos or Indians.” (Remember when you could use terms like “Eskimo” and “Indian” without being accused of a hate crime?)
Unlike blacks, who were “dragged to this country in chains to be sold in slavery,” Stevens said “the ‘Spanish-speaking’ subclass came voluntarily, frequently without invitation, and the Indians, the Eskimos and the Aleuts had an opportunity to exploit America’s resources before the ancestors of most American citizens arrived.”
Now fast-forward to 2003, when the court considered the race-based admissions policy at the University of Michigan. The school automatically awarded 20 points—one-fifth of the total points needed for admission -– to every minority, including not only blacks, but also Hispanics, Indians, Eskimos and Aleuts.
This time, affirmative action for Aleuts was just peachy with Stevens, who came up with a ludicrous procedural objection to the lawsuit, basically concluding that no one ever has standing to sue for race discrimination in college admissions. I guess he figured it was time somebody did something about the University of Michigan’s long, shameful history of discriminating against Aleuts.
That’s quite a change from the Justice Stevens of Fullilove, who compared government affirmative action programs to Nazi policies, saying if the government “is to make a serious effort to define racial classes by criteria that can be administered objectively, it must study precedents such as the First Regulation to the Reich’s Citizenship Law of Nov. 14, 1935,” translated in Volume 4 of “Nazi Conspiracy and Aggression.”
Whatever you think of Stevens’ newfound admiration for government racial preferences, it’s preposterous to say, as Stevens did, “I really don’t think I’ve changed all that much.”
If liberals will lie about obvious facts from the last few decades, such as Stevens’ dramatic swing to the left, how can they be trusted to tell the truth about a 200-year-old Constitution?