Justice Stevens’s Legacy On Liberty

Cliff Sloan, a former clerk of retiring Supreme Court Justice John Paul Stevens, makes a four part case that he was the greatest (non-chief) Justice in American history.  His second point of evidence is Justice Stevens’s vigorous defense of personal liberty, including his contribution to the long overdue overturning laws criminalizing gay sex:

Second, Justice Stevens has fundamentally changed – and strengthened – the Court’s jurisprudence regarding personal freedom.  As Jamal Greene has detailed in these pages, Justice Stevens has successfully re-framed the Court’s conceptual framework for personal freedom from a general “privacy” right, which is not mentioned explicitly in the Constitution, to a “liberty” right, which is prominently and explicitly protected in the Constitution.   This re-orientation is more than a matter of nomenclature or constitutional tidiness.  It has shifted the protection of personal freedom to a more secure and durable foundation.  Not coincidentally, Justice Stevens’ corresponding impact on the protection of liberty has been enormous.  To use a well-known example, Justice Stevens’ dissent in Bowers v. Hardwick, in which he disagreed with the Court’s acceptance of a criminal ban on homosexual conduct and emphasized “the abiding interest in individual liberty,” became the law of the land in Lawrence v. Texas.   Justice Kennedy’s opinion for the Court in Lawrence explicitly adopted Justice Stevens’ dissent as the basis for overruling Bowers: “Justice Stevens’ analysis  . . .  should have been controlling in Bowers and should control here.”  The remarkable seventeen-year arc of that dissent, and the more general re-fashioning of the Court’s framework from a privacy foundation to a liberty foundation, are historic triumphs.  (Full disclosure: as a law clerk, I worked with Justice Stevens on his Bowers v. Hardwick dissent.)

I fear his moral and legal clarity will be missed when he is gone.

Read Sloan’s full case for Stevens’s supreme greatness on SCOTUSblog.

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