On the
United States Court of Appeals for the Seventh Circuit, Stevens had a moderately
conservative record. Early in his tenure on the Supreme Court, Stevens had a relatively moderate voting record. He voted to reinstate
capital punishment in the United States and opposed race-based admissions programs, such as the program at issue in
Regents of the University of California v. Bakke, . However, on the more conservative
Rehnquist Court, Stevens joined the more liberal justices on issues such as
abortion rights,
gay rights and
federalism. His
Segal–Cover score, a measure of the perceived liberalism/conservatism of Court members when they joined the Court, places him squarely on the conservative side of the Court. However, a 2003 statistical analysis of Supreme Court voting patterns found Stevens the most liberal member of the Court. President Ford expressed no regrets about Stevens's drift toward liberalism, writing in a 2005 letter to
USA Today, "Justice Stevens has made me, and our fellow citizens, proud of my three decade old decision to appoint him to the Supreme Court." Stevens's jurisprudence has usually been characterized as
idiosyncratic. Stevens, unlike most justices, reviewed petitions for
certiorari within his chambers instead of having his
law clerks participate as part of the
cert pool and usually wrote the first drafts of his opinions himself; He was not an
originalist (such as
Antonin Scalia) nor a pragmatist (such as Justice
Stephen Breyer), nor did he pronounce himself a cautious liberal (such as Justice
Ruth Bader Ginsburg). though he publicly called himself a judicial conservative in 2007. In
Cleburne v. Cleburne Living Center, , Stevens argued against the Supreme Court's famous "
strict scrutiny" doctrine for laws involving "suspect classifications", putting forth the view that all classifications should be evaluated using the "rational basis" test as to whether they could have been enacted by an "impartial legislature". In
Burnham v. Superior Court of California, , Stevens demonstrated his independence with a characteristically pithy concurrence. Stevens was once an impassioned critic of
affirmative action; in addition to the 1978 decision in
Bakke, he dissented in the case of
Fullilove v. Klutznick, , which upheld a minority set-aside program. He shifted his position over the years and voted to uphold the
affirmative action program at the
University of Michigan Law School challenged in
Grutter v. Bollinger, . Stevens wrote the majority opinion in
Hamdan v. Rumsfeld in 2006, in which he held that certain military commissions had been improperly constituted. He also wrote a lengthy dissenting opinion in
Citizens United v. FEC, arguing the majority should not make a decision so broad that it would overturn precedents set in three previous Supreme Court cases. When reviewing his career at the Supreme Court in his 2019 book,
The Making of a Justice: Reflections on My First 94 Years, Stevens lamented being unable to persuade his colleagues against the decision in
Citizens United, which he described as "a disaster for our election law."
Freedom of speech Stevens's views on obscenity under the
First Amendment changed over the years. He was initially quite critical of constitutional protection for obscenity, rejecting a challenge to Detroit zoning ordinances that barred adult theaters in designated areas in
Young v. American Mini Theatres, , ("[E]ven though we recognize 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"), but later in his tenure adhered firmly to a
libertarian free speech approach on obscenity issues, voting to strike down a federal law regulating online obscene content considered "harmful to minors" in
ACLU v. Ashcroft, . In his dissenting opinion, Stevens argued that, while "[a]s a parent, grandparent, and great-grandparent", he endorsed the legislative goal of protecting children from pornography "without reservation", "[a]s 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 criminal regulation of speech as a substitute for, or a simple backup to, adult oversight of children's viewing." Perhaps the most personal and unusual feature of his jurisprudence was his continual referencing of World War II in his opinions. For example, Stevens, a World War II veteran, was visibly angered by
William Kunstler's flippant defense of flag-burning in oral argument in
Texas v. Johnson, and voted to uphold a prohibition on flag-burning against a
First Amendment argument. Stevens wrote, "The ideas of liberty and equality have been an irresistible force in motivating leaders like
Patrick Henry,
Susan B. Anthony, and
Abraham Lincoln, schoolteachers like
Nathan Hale and
Booker T. Washington, the
Philippine Scouts who fought at
Bataan, and the soldiers who scaled the bluff at
Omaha Beach. If those ideas are worth fighting for—and our history demonstrates that they are—it cannot be true that the flag that uniquely symbolizes their power is not itself worthy of protection from unnecessary desecration." Stevens generally supported students' right to free speech in public schools. He wrote sharply-worded dissents in
Bethel v. Fraser, and
Morse v. Frederick, , two decisions that restricted students' freedom of speech. However, he joined the Court's ruling on
Hazelwood v. Kuhlmeier, which upheld a principal's censorship of a
student newspaper.
Establishment Clause In
Wallace v. Jaffree, , striking down an Alabama statute mandating a minute of silence in public schools "for meditation or silent prayer", Stevens wrote the opinion for a majority that included justices
William Brennan,
Thurgood Marshall,
Harry Blackmun, and
Lewis Powell. He affirmed that the
Establishment Clause is binding on the States via the
Fourteenth Amendment, and that: "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. At one time, it was thought that this right merely proscribed the preference of one Christian sect over another, but would not require equal respect for the conscience of the infidel, the atheist, or the adherent of a non-Christian faith such as Islam or Judaism. But when the underlying principle has been examined in the crucible of litigation, the Court has unambiguously concluded that the individual freedom of conscience protected by the First Amendment embraces the right to select any religious faith or none at all." Stevens wrote a dissent in
Van Orden v. Perry, , in which he was joined by Justice Ruth Bader Ginsburg; he argued that the ten commandments displayed in the
Texas Capitol grounds transmitted the message: "This State endorses the divine code of the 'Judeo-Christian' God." The Establishment Clause, he wrote, "at the very least ... has created a strong presumption against the display of religious symbols on public property", and that it "demands religious neutrality—Government may not exercise preference for one religious faith over another". This includes a prohibition against enacting laws or imposing requirements that aid all religions as against unbelievers, or aid religions that are based on a belief in the existence of God against those founded on different principles.
Commerce clause and states' rights When interpreting the
Interstate Commerce Clause, Stevens consistently sided with the
federal government. He dissented in
United States v. Lopez, and
United States v. Morrison, , two prominent cases in which the
Rehnquist court changed direction by holding that Congress had exceeded its constitutional power under the Commerce Clause. He then authored
Gonzales v. Raich, , which permits the federal government to arrest,
prosecute, and
imprison patients who use
medical marijuana regardless of whether such use is legally permissible under state law.
Fourth Amendment Stevens had a generally libertarian voting record on the
Fourth Amendment, which deals with
search and seizure. Stevens authored the majority opinion in
Arizona v. Gant, which held that "police 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 dissented in
New Jersey v. T. L. O., and
Vernonia School District 47J v. Acton, , both involving searches in schools. He was a dissenter in
Oliver v. United States, , a case relating to the
open-fields doctrine. However, in
United States v. Montoya De Hernandez, , he sided with the government, and he was the author of
United States v. Ross, , which permits the police to search closed containers found in the course of searching a vehicle. He also authored the dissent in
Kyllo v. United States, , which held that the use of thermal imaging requires a warrant. In a 2009 paper,
Ward Farnsworth argued that Stevens's "dissents against type" (in Stevens's case, votes in dissent in favor of the government's position and against the accused, such as the one in
Kyllo) suggest that while Stevens "[believed] strongly in laying out resources for the sake of accuracy and opportunities to protest an unfair trial, [he is] not nearly as concerned about restraining the government at the front end of the process, when it is gathering evidence—for the costs of invaded rights then are to
liberty rather than to
accuracy".
Death penalty Stevens joined the majority in
Gregg v. Georgia, , which overruled
Furman v. Georgia, and again allowed the use of the death penalty in the United States. In later cases such as
Thompson v. Oklahoma, and
Atkins v. Virginia, , 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, and joined the Court's majority in
Roper v. Simmons, , overturning
Stanford. In
Baze v. Rees, , Stevens voted with the majority in upholding Kentucky's method of lethal injection, because he felt bound by
stare decisis. However, he opined that "state-sanctioned killing is ... becoming more and more anachronistic" and agreed with former justice
Byron White's assertion that "the needless extinction of life with only marginal contributions to any discernible social or public purposes ... would be patently excessive", in violation of the
Eighth Amendment (quoting from White's concurrence in
Furman). Soon after his vote in
Baze, Stevens told a
Sixth Circuit conference that one of the drugs (
pancuronium bromide) in the three-drug cocktail used by Kentucky to execute death row inmates is prohibited in Kentucky for euthanizing animals. He 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, at the time of his opinion in
Baze, was one of four justices—the others being
Brennan,
Marshall, and
Blackmun—who 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. == Other significant opinions ==