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Stevens: the court’s champion of fairness

"This was a tale, old soldier, so well told!" These lines, from Homer's Odyssey, might have been written of Justice John Paul Stevens, who recently announced his impending retirement from the Supreme Court. He served 35 years, and for at least the past two decades he has been the court's strongest voice of reason. Now President Barack Obama must replace the irreplaceable; his choice will powerfully shape America's story for decades to come.

Commentators describe Justice Stevens, who turned 90 on Tuesday, as the court's leading judicial liberal, but this is nonsense. "I don't think of myself as a liberal at all," he said in 2007. "I think as part of my general politics, I'm pretty darn conservative." Justice Stevens, the "liberal," voted to uphold laws against burning the American flag, and to permit states to require voters to present government ID at the polls — both positions that are anathema to the legal left.

But consider these propositions: States may not execute retarded people. The U.S. may not imprison foreigners forever without even a hearing. Doctors may not reveal confidential medical records of pregnant women to government snoops. Elements of a crime must be proved beyond a reasonable doubt. And a wheelchair-bound criminal defendant, forced to crawl up two flights of stairs to attend his own trial, is protected by the Americans with Disabilities Act.

Radical? Hardly. But each was decided by a single vote — Justice Stevens'. That this loyal, moderate Midwestern Republican now shines as a progressive beacon simply throws into sharp relief the darkness that has fallen over our legal world.

Ronald Reagan's political legacy included a full-throated attack on the very idea of constitutional rights and the rule of law. "Fairness," sniffed Reagan appointee Antonin Scalia in a recent opinion, "does not seem to us a judicially manageable standard." The hard-right legal view (insistently proclaimed by conservatives as "strict construction") is that law exists to empower law enforcement, protect the wealthy and powerful and prevent distressing outbreaks of equality.

But to Justice Stevens, fairness was fundamental. The upcoming confirmation hearings for his replacement will help determine which view — law as rules or justice as fairness — constitutes "mainstream jurisprudence." The legal debate will be arcane and distorted, but President Obama can find a worthy successor, and ordinary citizens can demand confirmation without smears or stalling.

Make no mistake, however: We are losing not just Justice Stevens' vote but his clear voice, his cool head and his wise heart. As a writer, he had a gift for the phrase that distills the issue and stings the other side, whether right or left. Twenty years ago, he dissented when liberal justices established that the First Amendment protected flag burning: "the public burning of a Vietnam draft card is probably less provocative than lighting a cigarette. Tomorrow flag burning may produce a similar reaction." Just this year, he dissented against the conservative majority's holding that corporations have a First Amendment right to spend money to support or defeat political candidates: "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."

As a thinker, over 35 years, he was adept at persuading swing justices to join moderate opinions. Pamela Harris, a former Stevens clerk and head of the Georgetown Law Center Supreme Court Institute, said that Justice Stevens had over time become "a master tactician on the court." Any replacement must have the potential to evolve into a similar figure.

And finally, there is his heart — that of a Midwestern patriot who joined the Navy the day before Pearl Harbor and who heeded the call of service until the age of 90. He is almost the last major public figure to have served in World War II. We call them "the Greatest Generation." Through the terrifying Depression, they forged a view of government as the protector of the weak; in a war against racist totalitarianism, savagely fought, they held aloft the idea of freedom and dignity for all. Justice Stevens grew gray in our service, toiling to perfect the democracy we share.

The old soldier's tale is told. Now it is up to President Obama, and to all of us, to see to it that his replacement will have the voice, head and heart to follow in his path, and to resist those who think fairness and justice are just too much to manage.

Garrett Epps teaches constitutional law at the University of Baltimore. He is the author of "Democracy Reborn: The Fourteenth Amendment and the Fight for Equal Rights in Post-Civil War America" and "Peyote vs. The State." His e-mail is gepps@ubalt.edu.

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