John Paul Stevens knew Scalia was a punk… 
What do pornography and judicial ethics have in common? When I was a kid, then-Justice Potter Stewart famously quipped “I know it when I see it“, as Jacobellis v. Ohio had the Court considering whether states could ban the showing of obscene movies. Not meant to mock, Stevens first invoked the “I know it when I see it” line at oral argument in Caperton v. Massey Coal, in raising the question of a judge’s failure to recuse himself from a case in which he received substantial campaign donations from one of the parties. Fellow Justice John Scalia stands poised against any development of a recusal standard for the high court.
The injustice of the Caperton ruling, for example, that an ruling upheld at EVERY level, then overturned by a State Supreme Court 3-2 margin, the deciding vote being also the recipient of a three million dollar payout by the very corporation for whom he, Brent Benjamin, ruled.
You could look it up.
Scalia prefers NO standard, for the corporation contribution OR the jurist. A few years later, these issues would surface again.
first, a primer on Stevens
ON RUTH
As a boy, Stevens attended the 1932 World Series baseball game in Chicago’s Wrigley Field, where he saw Babe Ruth call his shot. He later recalled: “Ruth did point to the center-field scoreboard. And he did hit the ball out of the park after he pointed with his bat. So it really happened.”
I guess judges are like umpires; once they call it, ain’t no debate…
TENURE BROUGHT PERSPECTIVE
Ultimately, Stevens became the senior Associate Justice and thus assumed the administrative duties of the Court whenever the post of Chief Justice of the United States was vacant or the Chief Justice was unable to perform his duties. Stevens performed the duties of Chief Justice in September 2005, between the death of William Rehnquist and the swearing-in of new Chief Justice John Roberts, and presided over oral arguments on a number of occasions when the Chief Justice was ill or recused. In a 2005 speech, Stevens stressed the importance of “learning on the job”; during his tenure, Stevens ruled, sided or stood on both sides of affirmative action, the death penalty, the First Amendment, obscenity and on other issues.
REGRET OVER DEATH PENALTY CASE
Stevens joined the majority in Gregg v. Georgia, 428 U.S. 153 (1976), which overruled Furman v. Georgia, 408 U.S. 238 (1972) and again allowed the use of the death penalty in the United States. In later cases, Stevens held that the Constitution forbids the use of the death penalty in certain circumstances. Stevens opposed using the death penalty on juvenile offenders; he dissented in Stanford v. Kentucky, 492 U.S. 361 (1989) and then years later joined the Court’s majority in Roper v. Simmons, 543 U.S. 551 (2005), overturning Stanford. In Baze v. Rees, 553 U.S. 35 (2008), Stevens opined that “state-sanctioned killing is…becoming more and more anachronistic” and later questioned whether Kentucky Derby second-place finisher Eight Belles died more humanely than those on death row.
He explained that his death penalty decisions were influenced, in part, by an increasing awareness through DNA testing of the fallibility of death sentences, and the fact that death-qualified juries come with a set of biases. Stevens later wrote that at the time of his opinion in Baze, he had concluded that post-Gregg capital punishment is unconstitutional under the Eighth Amendment. After his retirement, Stevens stated that his vote in Gregg was the only vote he regretted.
That takes courage, to admit your long-latent decision overstepped.
FIRST AMENDMENT AND OBSCENITY CASES
Stevens’s views on obscenity under the First Amendment also changed over the years. Early opinions find him sommewhat critical of constitutional protection for obscenity, rejecting a challenge to Detroit zoning ordinances that barred adult theaters in designated areas in 1976′s Young v. American Mini Theatres, 427 U.S. 50 (1976), “Even though recognized that the First Amendment will not tolerate the total suppression of erotic materials that have some arguably artistic value, it is manifest that society’s interest in protecting this type of expression is of a wholly different, and lesser, magnitude than the interest in untrammeled political debate”. In Young v. AMT, Stevens effectively relegated erotic speech to a station below perceived ordinary speech.
In time, Stevens applied a more firm libertarian free speech approach on obscenity issues, voting to strike down a federal law regulating online obscene content considered “harmful to minors” in 2002′s ACLU v. Ashcroft, 535 U.S. 564 (2002), which in a dissenting opinion Stevens argued that while “…as a parent, grandparent, and great-grandparent”, he endorsed the legislative goal of protecting children from pornography “without reservation”: “As a judge, I must confess to a growing sense of unease when the interest in protecting children from prurient materials is invoked as a justification for using (statute to provide for) criminal regulation of speech…”
Stevens would appear to be rebuking Alberto Gonzales, former BUSH43 AG who stood before Congress and declared the false equivalency that concern for his two young sons trumps legal free speech of the erotic kind… During his confirmation hearings, Gonzales said that “obscenity is something else that very much concerns me. I’ve got two young sons, and it really bothers me about how easy it is to have access to pornography.”
STANCE APART FROM COURT ON BUSH v GORE
In Bush v. Gore, 531 U.S. 98 (2000), Stevens wrote a absolutely scathing dissent on the Court’s ruling to stay the recount of votes in Florida, the net effect being the court’s manifest intervention in the process of American democracy as outlined in the Constitution.
Technically, no 43rd President served as prescribed by the Constitution.
Stevens believed that the decision in Bush v Gore displayed “an unstated lack of confidence in the impartiality and capacity of the state judges who would make the critical decisions if the vote count were to proceed.” He continued, “…endorsement of that position by the majority of this Court can only lend credence to the most cynical appraisal of the work of judges throughout the land. It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. Time will one day heal the wound to that confidence that will be inflicted by today’s decision. One thing, however, is certain. 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.“
DISSENT IN CITIZENS UNITED VERDICT
The now infamous Citizens United v. Federal Election Commission, 558 U.S. 08-205 (2010), 558 U.S. 130 S.Ct. 876 (January 21, 2010) holds that First Amendment protections prohibit government from placing limits on independent spending for political purposes by corporations and unions. The decision reached the Supreme Court on appeal from a January 2008 decision by the US District Court for DC. The lower court decision had upheld provisions of the 2002 McCain-Feingold campaign reform act, which prevented the film Hillary: The Movie from being shown on television within 30 days of 2008 Democratic primaries.
In Citizens United, the Supreme Court reversed the lower court. Further, it ruled on issues Stevens steadfastly maintains were not before the court. The majority opinion, authored by Justice Kennedy, found that prohibition of independent expenditures by corporations and unions was invalid and could not be applied to spending such as that in Hillary: The Movie. Kennedy wrote: “If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.” Why Kennedy capriciously equates speech with money, or regulatory effect as somehow contrary or outside a larger governmental purpose is beyond this writer. How Kennedy came to equate a bi-partisan attempt to create fair election rules by limiting unbridled and hidden sources of corporate contribution in its worst forms with fining or jailing citizens, or associations of citizens, I frankly dunno. Uhhh, it also seems a broad reach and unrelated to the issue of the campaign regulatory reform (the issue seemingly before the court) that Kennedy goes on to add since there was no way to distinguish between media and other corporations, the restrictions in the statute would allow Congress to suppress political speech in newspapers, books, television and blogs.
Oh, it gets better…
What Stevens calls to task is Chief Justice Roberts writing separately “to address the important principles of judicial restraint and stare decisis implicated in this case” and to further explicate and defend the court’s statement that “there is a difference between judicial restraint and judicial abdication”. The Chief Justice argued that there are times during which overruling prior decisions is necessary. Had the courts never gone against stare decisis, “segregation would be legal, minimum wage laws would be unconstitutional, and the Government could wiretap ordinary criminal suspects without first obtaining warrants”. Roberts’ concurrence recited a plethora of case law in which the court had ruled against precedent. It also reads like a policy paper turned in just ahead of the deadline for extra credit, having had the documents overnighted from ALEC, or American Crossroads, or the Koch machine, or the Heritage Foundation. More than any Supreme Court decision yet turned in copied in crayon, Roberts and especially the obtuse winger-waving, head-wagging little punk that sits in Samuel Alito’s seat knew exactly what had been tasked to them in Roberts’ deviating from the question before the court.
CALLED OUT ROBERTS FOR ETHICS ON REACH OF CASE
The dissenting opinion authored by Justice Stevens was joined by Justices Ginsburg, Breyer and Sotomayor. To emphasize his unhappiness with the majority, Stevens took the rare step of reading part of his 90-page dissent from the bench. Stevens concurred in the Court’s decision to sustain campaign finance reform disclosure provisions, but dissented from the principal holding of the majority opinion. Stevens knew empirically that the ruling “threatens to undermine the integrity of elected institutions across the Nation. The path it has taken to reach its outcome will, I fear, do damage to this institution.” The dissent also argued that the Court’s holding that the statute they addressed here was facially unconstitutional was ruling on a question not brought before it by the litigants, and so claimed that the majority “changed the case to give themselves an opportunity to change the law.”
Stevens concluded his dissent:
At bottom, the Court’s opinion is thus a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt. It is a strange time to repudiate that common sense. While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.
Then Dude retired. F*ckin’ A.
OK, here’s the Corndogs, playing their hit “GO POGO”
The love Mike Watt displays for his lifelong friend D Boon is admirable. Inspiring.