John Paul Stevens, Marijuana, and the Politics of the Supreme Court

As with the issue of gay rights, measurable public opinion has been changing and continues to change dramatically with regards to the legalization of marijuana. Polls this year in fact show for the first time ever that a majority of Americans favor legalization.* The spread of jurisdictions legalizing medical marijuana, now followed by the first states to authorize recreational use have been big boosts to the ultimate goals of the end of its federal prohibition and national legalization, and this week, a new voice has joined the call. In an NPR interview done yesterday and to be broadcast tomorrow, retired Supreme Court Justice John Paul Stevens gives his opinion that there is little difference between marijuana use and consuming alcohol, and that marijuana should be legalized.

Justice Stevens served on the highest court for just under 35 years. Appointed by Pres. Gerald Ford, Stevens was considered a conservative who, by replacing one of the court’s greatest justices and liberal stalwarts, William O. Douglas, would give the court a


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consistent conservative voice. While to this day Stevens considers himself a conservative, he more often than not voted with the court’s liberal wing, and for

almost two decades, following the retirements of Thurgood Marshall and William Brennan, was the loudest and most consistent liberal on the court. But that needs to be put in context.

Several researchers maintain detailed analyses of the ideological leanings in the voting records of Supreme Court justices**, going back as far as the 1930s, and all of the accepted and respected studies demonstrate these uncontroverted facts: The US Supreme Court in the period covered by these studies has never been as conservative as it has been over the past few years, and there are no true liberals who vote that ideology with consistency anywhere near that of such former justices as Douglas, Marshall, Brennan, Arthur Goldberg or Abe Fortas, and over that period since the 1930s no other justices have ever voted so ideologically conservative as Clarence Thomas and Antonin Scalia.

No more striking example of the politics and ideology of the current Supreme Court is available than this week’s decision in Schuette v. Coalition to Defend Affirmative Action, in which the court upheld a Michigan ban on affirmative action in university admissions and public employment. The plurality opinion, written by Justice Kennedy, the “swing” vote of the current court, but a swing vote

that more often than not votes strongly conservative, held that no constitutional grounds existed to set aside a vote of the people of Michigan that banned affirmative action. However, the far right ideologues, Thomas and Scalia, in a concurring opinion written by Scalia, called for a total ban on affirmative action based on constitutional issues. But, there was yet another concurring opinion from liberal justice Stephen Breyer who voted with the right wing majority and who wrote a somewhat strained opinion holding that affirmative action could rightfully be eliminated at any time by the same individuals or governing bodies that had created it in the first place.


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Throughout his tenure in office, unlike his republican predecessors george w bush, george h w bush and reagan, who loaded the federal court system with ideologue right wing ultra conservatives, the vast majority of whom were incompetent to ever be considered for judgeships, Pres.Obama has failed to nominate any significant number of true liberals to federal judgeships, choosing instead to nominate top legal scholars who generally have records demonstrating a history of moderate, middle-

of-the-road decisions. Any objective analysis of his Supreme Court nominees clearly reveals this.

Hopefully, however, when the POTUS makes his next Supreme Court nominations he will have decided that the moderates and conservatives have had their way for far too long, and that it is time to bring one or more true liberals, in the spirit of Marshall and Douglas, to the Court.

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*A January, 2104 CBS News poll found 51% support legalization while 44% do not.
**One analysis is done at Georgetown University by Michael A. Bailey and another is done by Andrew D. Martin and Kevin M. Quinn.

About theHoundDawg

For many years as a lawyer, I saw much of the good and bad of society, and did what I could to right many wrongs. The lack of understanding of what is good and bad, right and wrong, just and unjust, as evidenced by such events as the election of King W as president, (who as such far surpassed the evil of richard nixon but not quite that of ronald reagan) lead me in a new direction, to spend my time trying to understand what is happening to our society, to try as best I can to spread my insights to others, and along the way to maybe even eke out a living through the internet.
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