What is perhaps most remarkable about Justice Stevens is the fact that he was a Republican, was nominated by a Republican president, but over time became the most liberal voice on the court. His opinions on abortion, gay rights and affirmative action made a lot of right-wing heads explode over the years, to be sure, and that can be almost entirely be chalked up to the fact that, in the second half of his tenure, the court began filling up with the kind of conservative thinkers who turn Republicans into Democrats.
Confronted by the likes of Renquist, Scalia and Thomas, Justice Stevens tacked steadily to the left and away from the party that nominated him in the first place.
Justice Stevens left his most significant mark with two documents, one a decision and the other a dissent. In Hamdan v. Rumsfeld (2006), Stevens declared the opinion of the court that military commissions set up by the Bush administration to hold tribunals for detainees at Guantanamo Bay violated the Uniform Code of Military Justice and the Geneva Convention, and therefore could not proceed.
This was the first significant blow against the manner in which the Bush administration was pursuing its so-called War on Terror, and against the Unitary Executive Theory, which defined their my-way-or-the-highway approach to policy. This decision is likely to be used by other detainees who bring legal actions regarding their treatment and detention.
The other document, a dissent, was nothing less than a thunderclap, perhaps the most significant dissent of the last 50 years.
In Bush v. Gore (2000), the court leaned on a wildly dubious Equal Protection argument to decide the 2000 presidential election in favor of George W. Bush. The dissent penned by Justice Stevens was as scathing, and as accurate, as anything ever rendered by the high court. It read, in part:
Finally, neither in this case, nor in its earlier opinion in Palm Beach County Canvassing Bd. v. Harris, 2000 WL 1725434 (Fla., Nov. 21, 2000), did the Florida Supreme Court make any substantive change in Florida electoral law. Its decisions were rooted in long-established precedent and were consistent with the relevant statutory provisions, taken as a whole. It did what courts do - it decided the case before it in light of the legislature's intent to leave no legally cast vote uncounted. In so doing, it relied on the sufficiency of the general "intent of the voter" standard articulated by the state legislature, coupled with a procedure for ultimate review by an impartial judge, to resolve the concern about disparate evaluations of contested ballots. If we assume - as I do - that the members of that court and the judges who would have carried out its mandate are impartial, its decision does not even raise a colorable federal question.
What must underlie petitioners' entire federal assault on the Florida election procedures is an unstated lack of confidence in the impartiality and capacity of the state judges who would make the critical decisions if the vote count were to proceed. Otherwise, their position is wholly without merit. The endorsement of that position by the majority of this Court can only lend credence to the most cynical appraisal of the work of judges throughout the land. It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. Time will one day heal the wound to that confidence that will be inflicted by today's decision. One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year's Presidential election, the identity of the loser is perfectly clear. It is the Nation's confidence in the judge as an impartial guardian of the rule of law.
If nothing else, history will remember Justice Stevens for these words. Had his voice been the majority opinion, as it should have been, we would all have been spared a decade of horror, loss, bloodshed and wanton executive criminality. It's pretty much just exactly that simple.
You were right, Mr. Justice. Thank you for your service, and Godspeed. You will be missed.
(Note: You can view every article as one long page if you sign up as an Advocate Member, or higher).
