They won’t count, of course, but John Paul Stevens has started casting some “votes” on some of the Supreme Court’s controversial rulings this Term. From his perch on the sidelines, as a retired Justice, Stevens has indicated in two public speeches just how he would have lined up if he were still one of the nine.  His most surprising “vote” among those would have placed him side by side with Justice Samuel A. Alito, Jr., who had declared that anti-gay protestors do not have a constitutional right to stage demonstrations at the scene of military funerals. For that view, Alito was all alone; eight Justices took the opposite view.
The Court on Thursday released the text of Stevens’ speech on Tuesday at a Law Day dinner of the Federal Bar Council in New York City.  Earlier this week, it had released a speech he had made on Monday at a dinner in his honor, also in New York City. In both, he picked out some recent rulings, and — in comments that are rare if not unprecedented for a Justice no longer on the Court — said where he would have stood.
Leaping out at the reader is this comment, in his Tuesday speech, about the Court’s decision March 2 in Snyder v. Phelps (09-751): “It might interest you to know that if I were still an active justice, I would have joined [Alito’s] powerful dissent in the recent case holding that the intentional infliction of severe emotional harm is constitutionally protected speech. The case…involved a verbal assault on the private citizens attending the funeral of their son — a Marine corporal killed in Iraq. To borrow Sam’s phrase, the First Amendment does not transform solemn occasions like funerals into ‘free-fire zones.’ ”
Stevens’ thoughts no doubt reminded some observers of his dissent in the 1989 case, Johnson v. Texas, in which the Court had ruled that burning the American flag as a protest demonstration was protected by the First Amendment — a decision that Stevens has made clear recently he still regards as wrongly decided. In his 1989 dissent, as now, Stevens appeared to be motivated, at least in part, by his keen sense of patriotism, enhanced by his service in the U.S. military in World War II.  (He made a fleeting reference Tuesday to his wartime service, mentioning Justice Byron R. White and adding that he had met White “at Pearl Harbor during World War II.”)
Later in his remarks on Tuesday, Stevens said that he also would have joined “without hesitation” Justice Alito’s “excellent majority opinion” in National Aeronautics and Space Administration v. Nelson (09-530). In that Jan. 19 ruling, the Court assumed that the Constitution protected a constitutional right to privacy in personal information about one’s self (but went on to rule that such a right was not violated when the government does background checks on employees in sensitive public jobs).
In the context of his speech, the retired Justice seemed to be praising Alito for acknowledging (albeit with some hesitancy) that new rights can be found included in the constitutional concept of “liberty.” Stevens went on to chastise Justice Antonin Scalia (joined by Justice Clarence Thomas) for arguing in a separate opinion in NASA that the concept of liberty in the Due Process Clause only protects procedural, not “substantive,” rights.
“Justice [John Marshall} Harlan specifically and correctly buried that argument years ago,” Stevens said, a reference to an opinion Harlan had written in 1961 in the case of Poe v. Ullman, extolling the use of the Due Process Clause to identify changing concepts of personal liberty.  Suggesting that Scalia (and Thomas) had sought to revive a discarded conception of Due Process, Stevens praised Alito and Chief Justice John G. Roberts, Jr. , “for their refusal to resuscitate” that idea now. (Roberts had joined Alito’s opinion in NASA.)
In that same speech, Stevens opined on how Justice Harlan would have voted in some current cases. He speculated that Harlan would have joined the Alito opinion in the NASA case, and that Harlan would have dissented when the Supreme Court, in the decision last year in McDonald v. Chicago, declared that the Second Amendment right to have a gun for personal self-defense can be enforced against state and local gun laws, as well as those at the federal level.
Harlan, Stevens suggested, would have concluded “that a constitutional amendment that was adopted to protect the states’ right to determine how best to regulate their militias, and which for over 140 years had imposed no impediment to state regulation of firearms, should not be changed by federal judges.” (Stevens’ praise of Alito on Tuesday did not include the majority opinion Alito wrote in McDonald; indeed, he said Alito was “quite wrong” in that ruling. Stevens, of course, had dissented in that case, and in the decision in 2008, in District of Columbia v. Heller, establishing the new personal right within the Second Amendment at the federal level.)
In the retired Justice’s speech on Monday, at the Equal Justice Initiative dinner, he was somewhat more subtle in discussing how he probably would have lined up in another controversial ruling this Term — Connick v. Thompson  (09-571), a 5-4 ruling issued March 29. In that decision, the Court overturned a money verdict awarded to a man who had spent more than 14 years on death row because New Orleans prosecutors covered up evidence that would have helped his defense. Stevens said that Justice Ruth Bader Ginsburg, who wrote the dissent in that case, “was the clear winner” of a debate with the majority opinion’s author, Justice Thomas, over how to judge the misconduct of the prosecutors. Stevens also suggested that the result in the case was not a “just” one.
His argument about the Connick decision, however, was more about the need, as he saw it, to make the government responsible for the misconduct of its employees — an approach that would cast aside the doctrine laid out in the Court’s 1978 ruling in Monell v. New York Department of Social Services; the Monell decision rejected the common-law concept of strict liability, or respondeat superior, that applies to private employers. “Why is it,” Stevens asked on Monday, “that when employees in a District Attorney’s office commit flagrant violations of constitutional rights, it is not grounds for imposition of tort liability on the attorneys’ employers?”
He urged his audience to study the matter.
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