by Mike Andrew -
SGN Staff Writer
U.S. Supreme Court Justice John Paul Stevens confirmed last week that he will retire from the court when it has finished its current session, probably in June or July.
He said he hopes his successor is confirmed 'well in advance of the commencement of the court's next term.'
Stevens' retirement will give President Obama his second opportunity to nominate a Supreme Court Justice. He named Justice Sonia Sotormayor to replace Justice David Souter last year.
Stevens was appointed to the Supreme Court by Pres. Gerald Ford in 1975. He will turn 90 years old on April 20.
Stevens is often described as a "liberal" by conservatives, but he described himself as a "judicial conservative" in a 2007 interview with ABC News.
Stevens has always insisted that he was not moving left, but the court was moving right.
"Every justice nominated has been more conservative than the one they replaced, except maybe for Justice Ginsberg," he said in a recent ABC News interview.
Stevens is perhaps best known to the LGBT community for his dissent in Bowers v. Hardwick (1986), in which the majority of the court upheld a Georgia law prohibiting oral and anal sex.
In his dissent Stevens wrote "the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice."
Stevens argued that the operative legal principle in the case was the due process clause of the 14th Amendment, a view which was later adopted by the majority of his Supreme Court colleagues in a number of personal liberty cases.
"[I]ndividual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring," Stevens wrote, "are a form of 'liberty' protected by the Due Process Clause of the 14th Amendment. Moreover, this protection extends to intimate choices by unmarried as well as married persons."
Stevens then argued that state intrusions are equally burdensome regardless of an individual's marital status or sexual orientation, and therefore the due process clause must apply equally, "regardless of whether the parties who engage in it are married or unmarried, or are of the same or different sexes."
In 2003, the court majority in Lawrence v. Texas, which reversed the Bowers decision and struck down sodomy laws, relied heavily on Stevens' reasoning in his Bowers dissent.
"Justice Stevens' analysis, in our view, should have been controlling in Bowers and should control here. Bowers was not correct when it was decided, and it is not correct today," Justice Anthony Kennedy wrote for the majority.
The court also applied similar reasoning in Romer v. Evans (1996) when it struck down a Colorado constitutional amendment prohibiting local anti-discrimination ordinances protecting sexual orientation.
In that case, Stevens joined a decision written by Justice Kennedy arguing that anti-discrimination ordinances do not create "special rights" for LGBT persons.
"To the contrary," the court said, "the amendment imposes a special disability upon those persons alone. Homosexuals are forbidden the safeguards that others enjoy or may seek without constraint."
The 14th Amendment's due process clause is also at the heart of three pending cases which could define LGBT rights for generations:
o Perry v Schwarzenegger, the case led by Ted Olson and David Boies challenging California's Prop 8, which overturned marriage equality in that state.
o Gill et al. v. Office of Personnel Management et al., the Massachusetts case challenging the federal DOMA, which prohibits recognition of same-sex marriages.
o Log Cabin Republicans v the USA, aimed at striking down "Don't Ask, Don't Tell."
Bush v. Gore
and other dissents
Stevens wrote a stinging dissent in Bush v. Gore (2000), in which the court majority halted a recount ordered by Florida state courts, thereby giving Florida's electoral votes - and the presidential election - to George W. Bush.
Stevens argued that the Supreme Court's intervention in the Florida recount gave the appearance of partisan politics and damaged the credibility of federal courts.
"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," he wrote.
Stevens also wrote a dissent in Van Orden v. Perry (2005), in which the majority voted to allow a Ten Commandments display at the Texas state capitol.
The 1st Amendment, he wrote, "has created a strong presumption against the display of religious symbols on public property", and it "demands religious neutrality - Government may not exercise preference for one religious faith over another."
Stevens was the lone dissenter in Scott v. Harris (2007), an 8-1 ruling holding that high-speed police chases resulting in death or serious injury do not violate the 4th Amendment.
Stevens argued that a jury should determine when deadly force is justified, not "a group of elderly appellate judges."
In the majority
Although Stevens is best known for his dissents, he also wrote significant majority opinions for the court.
In Wallace v. Jaffree (1985), the court struck down an Alabama statute mandating a minute of silence in public schools for "meditation or prayer."
In his opinion, Stevens argued that the non-establishment-of-religion clause of the 1st Amendment became binding on state governments with the ratification of the 14th Amendment.
"Just as the right to speak and the right to refrain from speaking are complementary components of a broader concept of individual freedom of mind, so also the individual's freedom to choose his own creed is the counterpart of his right to refrain from accepting the creed of the majority," he wrote.
"[T]he Court has unambiguously concluded that the individual freedom of conscience protected by the 1st Amendment embraces the right to select any religious faith or none at all."
In Arizona v. Gant, Stevens authored the majority opinion which restricted police stop-and-search powers.
"[P]olice may search a vehicle incident to a recent occupant's arrest only if the arrestee is within reaching distance of the compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest," he wrote.
Stevens also wrote the majority opinion in Hamdan v Rumsfeld (2006), in which he held that the military tribunals set up by the Bush administration to try suspected terrorists had to comply with both U.S. and international law.
Defendant Hamdan's exclusion from parts of his trial containing what the military judges deemed classified information violated both of these, Stevens said, and the trial was therefore illegal.
Not all of Stevens' majority opinions tended toward the "liberal" side, however.
In Crawford v. Marion County Election Board (2007) he held that states may require official photo ID cards to ensure that only citizens vote. He was joined by Justices Roberts, Kennedy, Scalia, Thomas, and Alito.
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