Justice Stevens a Conservative?

Retiring Supreme Court Justice John Paul Stevens is actually a conservative according to Newsweek columnist Andrew Romano, who apparently hasn't read any Supreme Court decisions in the last 20 years or so.

Romano rejects the notion that Stevens is a liberal, going so far as to chastise his fellow members of the media who frequently get suckered by "whichever shorthand, cheat-sheet label gets repeated most frequently." Romano further writes that the current coverage is "myopic" and that the lowly uniformed "laypeople are being given little choice but to remember the hunched, bow-tied Stevens, 89, as really, really liberal—Dennis Kucinich in robes."

So what is Romano's proof for this theory?

The prevailing view is that "there really were two Justice Stevenses," as Richard Fallon, a constitutional law professor at Harvard Law School, recently told Business Week: one who was "a somewhat iconoclastic moderate" and another who was a "great liberal voice."

Whoops. It's hard to prove a Supreme Court Justice is conservative by pointing to another commentator's analysis that the Justice is "moderate" and/or "liberal."

Romano also tries to establish Stevens' conservative chops by noting he was appointed by not one, but two, Republican presidents. And so what? Recently retired Justice David Souter was also a Republican appointee who ultimately became a reliable vote for the liberal bloc of the high court.

If you still aren't convinced, consider that Stevens' father voted for Calvin Coolidge!

Romano's tortured logic is the foundation for his bigger argument that a conservative Justice Stevens has been rendered liberal by the right-wing originalists who have sprung up around him:

But ultimately Stevens's shifting status has less to do with changes in his judicial philosophy than with changes in the court. While it moved right, he stayed put.

Romano argues that "[t]he conservatives, in other words, have become the activists—and the liberals have become the conservatives."

So according to Romano, Justice Stevens is the true reliable conservative, on a conservative court, whose voice is now drowned out by the right-wing activists. Yeah right.

The facts are the facts, and Justice Stevens has been a very reliable vote for the liberal bloc on the Supreme Court for many many years. Among just some of the highlights, Stevens: voted against the death penalty for child rapists in Kennedy vs. Louisiana (2008); voted against the partial birth abortion ban in Gonzales vs. Carhart (2007); voted to uphold the University of Michigan's affirmative action policy in Grutter vs. Bollinger (2003); voted with the minority, and wrote a spritied dissent, in Bush vs. Gore (2000); voted to uphold Roe vs. Wade in its most significant review to date, Planned Parenthood vs. Casey (1992).

It's especially hard to argue that Justice Stevens is a conservative when you consider that he wrote the opinion in Kelo vs. New London (2005), upholding the governmental taking of private property through eminent domain as a permissible public use.

While it is true that Stevens was once considered moderately conservative (as evidenced by his appointments by Nixon and Ford), his votes over the last two-decades-plus show that Stevens is the one who has changed over the years. And without additional boring case law analysis, Stevens' positions on affirmative action and the death penalty (to name just two) have trended more liberal over the years.

So why does Romano argue that Stevens is a conservative? If Stevens is a conservative, then it's easier to frame Justices Thomas and Scalia as "right wing" and "activists," which Romano has done in his column. And if the current court is full of radical right wingers, so the argument goes, then it might just be the time for a radical lefty to balance things out. Is Romano advocating for a far left nominee? That's my theory, which is at least as plausible as Justice John Paul Stevens being a conservative.