Jacob Sullum

As Supreme Court Justice John Paul Stevens "gradually became the leader of the court's liberal wing," The New York Times reports, "he became increasingly skeptical of claims of government power." According to a Washington Post editorial, "his voice was consistently raised on behalf of those vulnerable to government excesses."

Such descriptions of Stevens, which were common after he announced his retirement last week, are based on a highly selective concern about state power. A closer look at Stevens' record shows he has been anything but consistent in his opposition to government excesses and that in some ways he has become less inclined to protect constitutional rights.

To his credit, Stevens has defended the rule of law in terrorism cases, and he often has resisted the Supreme Court's tendency to facilitate enforcement of the drug laws by whittling away at the Fourth Amendment's prohibition of "unreasonable searches and seizures." Yet Stevens has gone along with more than a few Fourth Amendment compromises, including decisions saying that a sniff by a drug-detecting dog is not a search, that police may search closed containers in cars and observe backyards from the air without a warrant, that a suspected drug smuggler can be detained until she defecates under supervision, and that a driver's unusually long wait at a stop sign justifies stopping him and peering into his car.

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He dissented from a 2001 decision that said police need a warrant to conduct infrared surveillance of a home, and in 2005 he wrote a decision that allowed police to use drug-sniffing dogs during routine traffic stops.

Stevens' record on First Amendment issues is similarly spotty. He wrote both the 1978 decision that upheld regulation of broadcast indecency and the 1997 decision that overturned regulation of online indecency. He voted to uphold censorship of student newspapers and to overturn censorship of student banners. In 1989 and 1990, he dissented from decisions overturning state and federal bans on flag burning. This year, he angrily dissented from a decision that said people organized as corporations, including nonprofit interest groups, have a right to talk about politics, even at election time.


Jacob Sullum

Jacob Sullum is a senior editor at Reason magazine and a contributing columnist on Townhall.com.
 
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