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Wednesday, June 1, 2011


Until Justice Sandra Day O'Connor was nominated by President Ronald Reagan in 1981,no woman had served on the Supreme Court. Today, there are three women -- Justice Ruth Bader Ginsburg, Justice Sonia Sotomayor (who is also the Court's first Latino justice) and Justice Elena Kagan. The first Jewish Justice was Louis Brandeis, nominated by President Woodrow Wilson in 1918, and today the Court has three Jewish justices -- Kagan, Ginsburg and Stephen Breyer -- as well as six Catholics (Chief Justice John Roberts, Justice Samuel Alito, Justice Clarence Thomas, Justice Antonin Scalia, Justice Anthony Kennedy, and Sotomayor). Of course, Justice Thurgood Marshall became the first African-American on the Court, nominated by President Lyndon Johnson in 1967 and there has been one other African-American, Justice Thomas. But when Justice John Paul Stevens retired last year, the Court lost its only Protestant (in a majority Protestant nation) and its only military veteran.

Just as it was long argued that the Court could not substantively address issues important to women unless it included women among its members, so, one might argue, the loss of a military veteran could skew the Court's decisions in another important way. That at least is one reaction to the comments recently by the retired Justice Stevens (pictured here with Justice Kagan, who replaced him) on the decision in Synder v. Phelps, the Court's recent 8-1 decision supporting the First Amendment protections of protesters at military funerals. The case, which received a lot of attention for the odious nature of the protesters' message -- they carried signs with slogans like "Thank God for Dead Soldiers" as a way of protesting what they claim is America's increasing tolerance of homosexuality -- could be considered an affirmation of the First Amendment's protection of "the thought that we hate" (Justice Oliver Wendell Holmes, Jr.), but it was the dissent by Justice Samuel Alito, not the majority opinion, that received praise from retired Justice Stevens. "It might interest you to know," he told a group gathered at the Waldorf Astoria in New York City a few weeks ago, "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."

Justice Stevens thought his audience might be surprised by that because Stevens was considered to be one of the more liberal justices on the Court while Justice Alito is a decided conservative and over the years in which they served together, they often clashed. But Justice Stevens, perhaps because he is a Navy veteran of World war II, saw eye-to-eye with Alito here. "To borrow Sam's phrase," said Justice Stevens, "the First Amendment does not transform solemn occasions like funerals into 'free-fire zones.'" The comment recalled Stevens's dissent in a 1989 First Amendment decision that gave protection to the act of flag burning. Even Justice Scalia, the Court's most vocal conservative, supported the majority in that case, but not Stevens.

Indeed, while a reliable liberal vote on most issues, Stevens's Supreme Court history shows a somewhat surprising bent towards authorizing a firm government hand in national security issues and an intolerance for the extremes of political dissent. He voted with the conservative majority last year in a decision that denied protection to speech, even benign speech, that could be deemed to support terrorist organizations. And in the same speech at the Waldorf this month, Stevens indicated that he would have supported the majority in NASA v. Nelson, a case in which the Court ruled that scientists and engineers should undergo intrusive background checks if their work is done for government contractors.

A First Amendment challenge to the Stolen Valor Act -- the 2005 law that makes it a crime to benefit from falsely claiming military service -- is likely to come before the Court next year and while Stevens history suggests that he would support the Act as constitutionally acceptable, he no longer has a vote nor, on this Court, does any other veteran of military service. Will we miss the perspective offered by such a voice?

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