Justice John Paul Stevens' Legacy
A person's identity obviously bears informational and incriminating worth, even if the name itself is not inculpatory. A name can provide the key to a broad array of information about the person, particularly in the hands of a police officer with access to a range of law enforcement databases. And that information, in turn, can be tremendously useful in a criminal prosecution. It is therefore quite wrong to suggest that a person's identity provides a link in the chain to incriminating evidence "only in unusual circumstances."
-- Justice John Paul Stevens, dissenting in Hiibel v. Sixth Judicial Dist. Ct. of Nev., Humboldt County, 542 U.S. 177, 196 (2004) (internal citations and quotations omitted)
Often dubbed a liberal justice, Justice Stevens told the New York Times that he did not think of himself as a liberal. "I really do think I'm a judicial conservative in the sense that I try to follow precedent as best I can," he said. No matter the titles, Justice Stevens' opinions and dissents have been indispensible in protecting privacy, safeguarding constitutional values, and promoting open government. Many of Justice Stevens' writings upheld these values and defended citizens' constitutional rights.
Appointed to the Court in 1975 by President Gerald Ford, Justice Stevens is one of the longest serving justices and the last justice on the Court to have served in World War II. Leaving his political ideology a mystery, Stevens strived to exercise judicial conservatism, described by him as "someone who submerges his or her own views of sound policy to respect those decisions by the people who have authority to make them." Stevens delivered two opinions that simultaneously bolstered the First Amendment and an individual's right to privacy. In McIntrye and Watchtower Bible, Stevens found laws restricting anonymous political speech to be unconstitutional. Furthermore, Stevens maintained an individual's right to privacy under the Fourth Amendment by reigning in warrantless searches in Ferguson and Arizona v. Gant.
Famous for his dissents, Stevens was unafraid to speak up when he disagreed with the majority's opinion. Stevens adhered to a conservative statutory interpretation approach evidenced in his dissents in Federal Open Market Committee and Kissinger v. Reporters Comm. for Freedom of the Press. In both FOIA cases, Stevens refrained from creating loopholes in the plain language in the FOIA, and was a strong advocate for open government. Additionally, Stevens wrote a memorable dissent in Bowers v. Hardwick, pushing to expand the scope of privacy and revealing the true aim of the Georgia sodomy statute.
Filling Justice Stevens' shoes will be a tough task for the next Supreme Court appointee. For nearly thirty-five years he has been committed to upholding the Constitution and providing reasoned thinking to the Court. He will always be remembered for his consistency and being true to the role and function of a judge.
- Open Government - Federal Open Mkt. Comm. of Fed. Reserve Sys. v. Merrill, 443 U.S. 340 (1979).
Justice Stevens dissented from the majority's decision to apply Exemption 5 of the FOIA to monetary policy directives issued by the Federal Open Market Committee, which allowed such information to be withheld from the public during the month the directives were in effect and then subsequently published in the Federal Register. In his dissent, Justice Stevens wrote:
In the first place, nothing in any of the nine exemptions to the Act has any bearing on the present situation. But more fundamentally, the Court's temporary exemption is inconsistent with the structure of the Act. Under FOIA, all information must be released, in the specified manner- i. e., in this case, "currently"-unless it fits into one of nine categories. As to material in those categories, the Act simply "does not apply."; 5 U.S.C. § 552(b) (emphasis added). Between "current" release and total exemption, therefore, the statute establishes no middle ground. Accordingly, I cannot agree with the Court's recognition of a third alternative for "exempt" material to which the Act nonetheless applies-albeit on a delayed basis. If there is to be a new category subject to full disclosure but only after a "slight delay," I believe it should be created by Congress rather than the Court.
443 U.S. 366-67.
- Open Government - Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136 (1980).
Justice Stevens concurred in part and dissented in part in an opinion where the majority held that the State Department did not "improperly withhold" documents consisting of notes of telephone conversations of Secretary of State Henry Kissinger where, at the time of request under FOIA, such documents were removed from the State Department and donated to the Library of Congress. Justice Stevens wrote:
The Court states, and I agree, that an agency cannot "withhold" documents unless it has either custody or control of them. It then goes on, however, to equate "custody" and "control" with physical possession, holding that FOIA is simply inapplicable to any "document which has been removed from the possession of the agency prior to the filing of the FOIA request."
I cannot agree that this conclusion is compelled by the plain language of the statute; moreover, it seems to me wholly inconsistent with the congressional purpose underlying the Freedom of Information Act. The decision today exempts documents that have been wrongfully removed from the agency's files from any scrutiny whatsoever under FOIA. It thus creates an incentive for outgoing agency officials to remove potentially embarrassing documents from their files in order to frustrate future FOIA requests. It is the creation of such an incentive, which is directly contrary to the purpose of FOIA, rather than the result in this particular case, that prompts me to write in dissent.
445 U.S. at 161-62.
- Search and Seizure - New Jersey v. T.L.O., 469 U.S. 325 (1985).
Concurring in part and dissenting in part, Justice Stevens found that a search by a school official of a student's purse was unreasonable under the Fourth Amendment.
The search of a young woman's purse by a school administrator is a serious invasion of her legitimate expectations of privacy. A purse "is a common repository for one's personal effects and therefore is inevitably associated with the expectation of privacy."
The majority holds that "a search of a student by a teacher or other school official will be 'justified at its inception' when there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school." Ante, at 743-744. This standard will permit teachers and school administrators to search students when they suspect that the search will reveal evidence of even the most trivial school regulation or precatory guideline for student behavior. The Court's standard for deciding whether a search is justified "at its inception" treats all violations of the rules of the school as though they were fungible. For the Court, a search for curlers and sunglasses in order to enforce the school dress code is apparently just as important as a search for evidence of heroin addiction or violent gang activity.
469 U.S. at 375 & 377.
- Privacy - Bowers v. Hardwick, 478 U.S. 186 (1986).
In Bowers v. Hardwick, a case overruled by Lawrence v. Texas seventeen years later, Justice Stevens dissented from the Court's opinion that found a Georgia law criminalizing sodomy constitutional as applied to homosexuals.
But when individual married couples are isolated from observation by others, the way in which they voluntarily choose to conduct their intimate relations is a matter for them-not the State-to decide. The essential "liberty" that animated the development of the law in cases like Griswold, Eisenstadt, and Carey surely embraces the right to engage in nonreproductive, sexual conduct that others may consider offensive or immoral.
Paradoxical as it may seem, our prior cases thus establish that a State may not prohibit sodomy within "the sacred precincts of marital bedrooms," Griswold, 381 U.S., at 485, 85 S.Ct., at 1682, or, indeed, between unmarried heterosexual adults. Eisenstadt, 405 U.S., at 453, 92 S.Ct., at 1038. In all events, it is perfectly clear that the State of Georgia may not totally prohibit the conduct proscribed by § 16-6-2 of the Georgia Criminal Code.
478 U.S. at 217-18.
- Privacy - United States Dep't of State v. Ray, 502 U.S. 164 (1991).
Writing for the majority, Justice Stevens found that the privacy rights of Haitian nationals who unsuccessfully attempted to emigrate to the United States illegally outweighed the interests of Haitians seeking political asylum. In a series of FOIA requests, the State Department released documents relating to interviews conducted with persons involuntarily returned to Haiti, but redacted names and identifying information. Finding the redaction lawful, Justice Stevens wrote:
Thus, if the summaries are released without the names redacted, highly personal information regarding marital and employment status, children, living conditions and attempts to enter the United States, would be linked publicly with particular, named individuals. Although disclosure of such personal information constitutes only a de minimis invasion of privacy when the identities of the interviewees are unknown, the invasion of privacy becomes significant when the personal information is linked to particular interviewees.
[D]isclosure of the interviewees' identities could subject them or their families to "embarrassment in their social and community relationships." App. 43. More importantly, this group of interviewees occupies a special status: They left their homeland in violation of Haitian law and are protected from prosecution by their government's assurance to the State Department.
502 U.S. at 176-77.
- First Amendment - McIntyre v. Ohio Elections Comm'n, 514 U.S. 334 (1995).
Justice Stevens wrote for the majority finding that an Ohio law prohibiting the distribution of anonymous campaign literature violated the First Amendment.
Under our Constitution, anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and of dissent. Anonymity is a shield from the tyranny of the majority. See generally J. Mill, On Liberty and Considerations on Representative Government 1, 3-4 (R. McCallum ed. 1947). It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation-and their ideas from suppression-at the hand of an intolerant society. The right to remain anonymous may be abused when it shields fraudulent conduct. But political speech by its nature will sometimes have unpalatable consequences, and, in general, our society accords greater weight to the value of free speech than to the dangers of its misuse. See Abrams v. United States, 250 U.S. 616, 630-631, 40 S.Ct. 17, 22, 63 L.Ed. 1173 (1919) (Holmes, J., dissenting).
514 U.S. at 357.
- Search and Seizure - Ferguson v. City of Charleston, 532 U.S. 67 (2001).
Justice Stevens, writing for the majority, found that a state hospital's policy of using maternity patients' urine tests to obtain evidence of a patient's use of cocaine for law enforcement purposes is an unreasonable search under the Fourth Amendment if the patient has not consented to the procedure. In three prior cases, the Court found circumstances where suspicionless searches were permissible, however, Justice Stevens explained why the hospital's use of urine tests in this manner did not qualify:
In each of those cases, we employed a balancing test that weighed the intrusion on the individual's interest in privacy against the "special needs" that supported the program. As an initial matter, we note that the invasion of privacy in this case is far more substantial than in those cases. In the previous four cases, there was no misunderstanding about the purpose of the test or the potential use of the test results, and there were protections against the dissemination of the results to third parties. The use of an adverse test result to disqualify one from eligibility for a particular benefit, such as a promotion or an opportunity to participate in an extracurricular activity, involves a less serious intrusion on privacy than the unauthorized dissemination of such results to third parties. The reasonable expectation of privacy enjoyed by the typical patient undergoing diagnostic tests in a hospital is that the results of those tests will not be shared with nonmedical personnel without her consent. See Brief for American Medical Association et al. as Amici Curiae 11; Brief for American Public Health Association as Amicus Curiae 6, 17-19. In none of our prior cases was there any intrusion upon that kind of expectation.
532 U.S. at 78.
- First Amendment - Watchtower Bible & Tract Soc'y of N.Y., Inc. v. Village of Stratton, 536 U.S. 150 (2002).
The Village of Stratton passed an ordinance making it a misdemeanor to engage in door-to-door advocacy without first registering with the mayor and receiving a permit. Writing for the majority, Justice Stevens held that this ordinance violated the First Amendment and a person's right to anonymous political speech.
The mere fact that the ordinance covers so much speech raises constitutional concerns. It is offensive-not only to the values protected by the First Amendment, but to the very notion of a free society-that in the context of everyday public discourse a citizen must first inform the government of her desire to speak to her neighbors and then obtain a permit to do so. Even if the issuance of permits by the mayor's office is a ministerial task that is performed promptly and at no cost to the applicant, a law requiring a permit to engage in such speech constitutes a dramatic departure from our national heritage and constitutional tradition.
536 U.S. at 165-66.
- Privacy - Hiibel v. Sixth Judicial Dist. Ct. of Nev., Humboldt County, 542 U.S. 177 (2004).
Justice Stevens' dissent on a Nevada law allowing law enforcement to arrest an individual when he refuses to identify himself was based on the belief that an individual's identity is protected information.
Given a proper understanding of the category of "incriminating" communications that fall within the Fifth Amendment privilege, it is clear that the disclosure of petitioner's identity is protected. The Court reasons that we should not assume that the disclosure of petitioner's "name would be used to incriminate him, or that it would furnish a link in [a] chain of evidence needed to prosecute him." Ante, at 2461 (internal quotation marks omitted). But why else would an officer ask for it? And why else would the Nevada Legislature require its disclosure only when circumstances "reasonably indicate that the person has committed, is committing or is about to commit a crime"? If the Court is correct, then petitioner's refusal to cooperate did not impede the police investigation. Indeed, if we accept the predicate for the Court's holding, the statute requires nothing more than a useless invasion of privacy. I think that, on the contrary, the Nevada Legislature intended to provide its police officers with a useful law enforcement tool, and that the very existence of the statute demonstrates the value of the information it demands.
A person's identity obviously bears informational and incriminating worth, "even if the [name] itself is not inculpatory." Hubbell, 530 U.S., at 38, 120 S.Ct. 2037. A name can provide the key to a broad array of information about the person, particularly in the hands of a police officer with access to a range of law enforcement databases. And that information, in turn, can be tremendously useful in a criminal prosecution. It is therefore quite wrong to suggest that a person's identity provides a link in the chain to incriminating evidence "only in unusual circumstances." Ante, at 2461.
542 U.S. at 195-96.
- Search and Seizure - Arizona v. Gant, 129 S.Ct. 1710 (2009).
Writing for the majority, Justice Stevens reigned in the practice of warrantless searches. He held that police could not search the passenger compartment of a vehicle incident to a recent occupant's arrest without a warrant, unless if it is reasonable to believe that the arrestee might access the vehicle at the time of the search or that the vehicle contains evidence of the offense of arrest. Criticizing the State's broad reading of Belton, which would authorize a vehicle search incident to every arrest of an occupant, Justice Stevens wrote:
First, the State seriously undervalues the privacy interests at stake. Although we have recognized that a motorist's privacy interest in his vehicle is less substantial than in his home, see New York v. Class, 475 U.S. 106, 112-113, 106 S.Ct. 960, 89 L.Ed.2d 81 (1986), the former interest is nevertheless important and deserving of constitutional protection, see Knowles, 525 U.S., at 117, 119 S.Ct. 484. It is particularly significant that Belton searches authorize police officers to search not just the passenger compartment but every purse, briefcase, or other container within that space. A rule that gives police the power to conduct such a search whenever an individual is caught committing a traffic offense, when there is no basis for believing evidence of the offense might be found in the vehicle, creates a serious and recurring threat to the privacy of countless individuals. Indeed, the character of that threat implicates the central concern underlying the Fourth Amendment-the concern about giving police officers unbridled discretion to rummage at will among a person's private effects.
Construing Belton broadly to allow vehicle searches incident to any arrest would serve no purpose except to provide a police entitlement, and it is anathema to the Fourth Amendment to permit a warrantless search on that basis. For these reasons, we are unpersuaded by the State's arguments that a broad reading of Belton would meaningfully further law enforcement interests and justify a substantial intrusion on individuals' privacy.
129 S.Ct. at 1720.
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Communications Law and Policy
Jerry Kang and Alan Butler