Stevens, who died on July 16 at the age of 99, is being remembered today as a justice who combined passionate advocacy with civility, a thoughtful bow-tied figure who was unafraid to change his mind, a trait often in short supply among the leadership class. But it is just as accurate to remember him as a deep pessimist about what has happened to the high court as an instrument for expanding justice, a man who believed that the radical shift in the Court’s direction required radical remedies.
Six Amendments was Stevens’ clearest expression of this sentiment. And when you remember that this book was written before Neil Gorsuch and Brett Kavanaugh joined the court, it can be read as a distant early warning of what is yet to come—and why only the “nuclear option” of constitutional amendments can change this course.
One of his proposals would overturn Citizens United and a series of other decisions that have steadily eroded Congress’ power over campaign financing, by declaring: “Neither the First Amendment nor any other provision of this Constitution shall be construed to prohibit the Congress or any state from imposing reasonable limits on the amount of money that candidates for public office, or their supporters, may spend in election campaigns.”
Another would change the Second Amendment to erase the “individual right” to bear arms pronounced in District of Columbia v. Heller. The Second Amendment would, in Stevens’ version, say only: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms when serving in the Militia shall not be infringed.” On its face, this would permit authorities to outlaw guns of every sort, hand guns and long guns alike.
A third amendment would explicitly prohibit states from gerrymandering legislative districts for partisan political advantage. His proposal flatly says a state must justify any departure from “compact and contiguous districts” and that “The interest in enhancing or preserving the political power of the party in control of the state government is not such a neutral criterion.”
A fourth would end the death penalty once and for all by defining it as a “cruel and unusual punishment” forbidden by the Eighth Amendment.
Why do these proposals give evidence that Stevens possessed a pessimistic frame? Because they represent an acknowledgement that the philosophy that dominated the Court for three-quarters of a century is moribund, with virtually no possibility of resuscitation.
Some of the conditions Stevens addressed in Six Amendments are the products of 5-4 decisions that represented a radical departure from “settled precedents” at the hands of majorities that were anything but practitioners of “judicial restraint.” The Heller case establishing an individual right to bear arms was a reading of the Second Amendment that former Chief Justice Warren Burger—not exactly a poster child for the ACLU—called “one of the greatest pieces of fraud … on the American people that I have ever seen in my lifetime.”
Citizens United saw a one-vote court majority reach far beyond the contours of the case before it to strike down Congress’ power to regulate much of the money flooding into the political system.
And Stevens’ proposal to outlaw partisan gerrymandering anticipated this year’s 5-4 decision that such practices “present political questions beyond the reach of the federal courts.” More than half a century ago, the Court rejected the “political question” argument when it mandated “one man one vote” districts. Likewise, it has regularly thrown out district maps that were based on race. Further, the Pennsylvania courts had no problem in throwing out congressional maps that gave Republicans seats out of all proportion to the votes they received. In another time, a U.S. Supreme Court might have been receptive to the idea that grossly partisan districts effectively deprived voters of a fair chance to make their votes count.
As for the death penalty, Stevens—who regularly upheld the sanction in his first years on the Court—became steadily more skeptical, until in 2008 he said that “the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes” should be banned as a violation of the Eighth Amendment. Here, Stevens was clearly reflecting the view that the Constitution must be read as a “living document”—that evolving standards make a punishment that was common in the late 18th century unacceptable today.
That “living document” notion has been under attack for decades by “originalists” such as Antonin Scalia and Clarence Thomas, who have argued that the “living Constitution” idea permits judges to turn their personal preferences into law. It’s a view embraced by the newer justices; in a lecture honoring the late Chief Justice William Rehnquist, future Justice Brett Kavanaugh embraced Rehnquist’s rejection of the idea that “nonelected members of the federal judiciary may address themselves to a social problem simply because other branches of government have failed or refused to do so.”
What Stevens did in his book was to concede the ground on which judicial liberals had triumphed so often. On issues from civil liberties to abortion to gay rights to criminal justice, justices appointed by Democratic and Republican presidents alike located a panoply of rights and powers in the Constitution that were not explicitly set down by the framers. Those days, Stevens implicitly argues, are over. The policies we want, Stevens is saying to his ideological allies, will not be won by interpreting the Constitution, but by amending it.
This is, of course, a prospect with no chance—none—of success in the current political universe. The idea of two-thirds of the House and Senate, and three-fourths of the states, ending the right to own a gun or the death penalty, or permitting federal campaign finance regulation, is on a par with the idea that small states will agree to give up equal representation in the Senate.
Stevens obviously knew this, which is why his book should be read with an elegiac sensibility, He was acknowledging that the Supreme Court that he was part of for 35 years is dead.
Politico Magazine first published of this obituary on July 17, 2019, shortly after Stevens’ death.