AMERICA:Scourge of the Bush administration, the recently retired Justice John Paul Stevens continues to make his mark on US society, writes LARA MARLOWE
The Supreme Court justice John Paul Stevens, who retired last June, started out as a conservative and ended his career as a political liberal. Stevens's transformation was evident this week, when the remarkably active 90 year-old gave an interview to CBS News's 60 Minutesprogramme and published an article about the death penalty in the New York Review of Books.
When Stevens was appointed to the Supreme Court by President Gerald Ford in 1976, he was considered a Republican. But by the time he retired as the third longest serving justice, Stevens had made his mark as a scourge of the Bush administration and an ardent defender of the neutrality of the institution he served for nearly 35 years.
In his television interview, Stevens reiterated his opposition to the court’s decision in 2000 to stop a recount in Florida in Bush vs Gore, which led to accusations the court “stole” the presidential election for Bush. Stevens led the court in the landmark 2004 case of Rasul vs Bush, when he argued that prisoners at Guantánamo Bay were entitled to lawyers and access to the courts. Stevens said the incommunicado detention, solely on Bush’s orders, without charges for nearly four years of José Padilla, a US citizen who was suspected of working on a “dirty bomb”, was “a potential threat to every citizen in the US.”
Last January, the court reversed 100 years of US law restricting corporate money in politics. Stevens opposed the “Citizens United” ruling, saying that the court’s decision to allow unfettered spending by corporations in election campaigns “will, I fear, do damage to this institution”. Nor has Stevens gone quietly into retirement. Last month, he took a typically reasoned stand on the so-called “ground zero mosque”.
He had served for two years as a navy cryptographer in Hawaii during the second World War. When he returned there in 1994, Stevens was surprised to see Japanese tourists visiting a memorial and remembered thinking, “We shouldn’t allow them to celebrate their attack on Pearl Harbor.” But on further reflection, Stevens concluded that the Japanese tourists were not responsible for the attack that brought the US into the second World War, any more than Muslims who want to build a mosque in Manhattan were responsible for the atrocities of 9/11.
The maturing of Justice Stevens has been most evident in his attitude towards the death penalty. As a newly-minted judge in 1976, he approved a key vote that effectively ended a four-year moratorium in the US, going against the liberal justices William Brennan and Thurgood Marshall, who said execution violated the constitutional ban on cruel and unusual punishment.
By 2008, Stevens had changed his mind, writing that the death penalty represented "the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes." In his review of David Garland's Peculiar Institution: America's Death Penalty in an Age of Abolitionin the New York Review of Books, Stevens points out that more than 130 people have been exonerated and freed from death row since 1973, some on the basis of DNA evidence.
The death penalty remains legal in 35 American states, and 1,233 people have been executed since 1976; 45 of them this year. Politicians see support for capital punishment as a vote-winner. Barbara Boxer, the Democratic senator from California, bragged of having voted 100 times for the death penalty. When George W Bush stood for the presidency in 2000, he had presided over a record 40 executions in the preceding year.
Racial bias is one of the main reasons for Justice Stevens’s conversion. A study led by the Iowa law professor David Baldus found that murderers of white victims were 11 times more likely to be sentenced to death than murderers of black victims in Georgia. “That the murder of black victims is treated as less culpable than the murder of white victims provides a haunting reminder of once-prevalent Southern lynchings,” Stevens writes. In the same book review, Stevens gives two chilling examples of the conservative radicalism that has swept the court. In 1987, the Supreme Court ruled against victim impact statements because they were deemed inconsistent with “the reasoned decision-making we require in capital cases”. Four years later, after a change in the composition of the court, that decision was reversed, with Stevens dissenting.
A 1968 decision ruled that jurors’ opposition to the death penalty was not a disqualifying factor. That was overturned three years ago, paving the way for what the late Justice Potter Stewart called “hanging juries”.
"The current court," writes Timemagazine's legal columnist Adam Cohen, "is becoming ever more enthusiastic about capital punishment and ever more indifferent to important details – like how certain we are that the person facing execution is even guilty." Last year, the conservative Justice Antonin Scalia suggested that it's not unconstitutional to execute an innocent person, as long as they've had a proper trial and appeals process.