Akhil Amar, American Constitution Society (ACS), Anthony Kennedy, Antonin Scalia, Conferences / Symposia, Constitutional Law, John Paul Stevens, Rape, SCOTUS, Supreme Court

Justice Stevens Address: Guys Who Wear Bow Ties…

Well, they give zero f**ks. Not a single one.

They’re wearing a ridiculous piece of fashion because they do not care about your opinion. Remember Gordon Gee? Bill Nye? Donald Duck?

And this universal truism was reaffirmed when the 93-year-old former justice took the stage before a giant gathering of liberal lawyers, jurists, academics, and law students, and patiently told them how wrong they are about DNA and the Fourth Amendment.

This is what happens when you invite Republicans to speak…

Justice John Paul Stevens gave essentially two speeches last week at the ACS Convention. The first dealt with the history of racism woven into the fabric of the Constitution and American jurisprudence. Stevens noted that the 3/5ths Clause institutionalized a racist electoral advantage for Southern whites, but that less attention is given to the fact that the 15th Amendment functionally exacerbated the advantage. By fully counting African-Americans for the sake of apportionment, but continuing to block the black vote through legal hurdles and outright intimidation, the Amendment, in effect, gave Southern whites a 40% advantage in voting power. Was this a hint that he’s not looking forward to the crippling of the Voting Rights Act in the looming Shelby County case? I see what you did there, JPS.

Justice Stevens segued into discussing the Slaughter-House cases. Yale law professor Akhil Amar said of the majority opinion in the Slaughter-House cases:

Virtually no serious modern scholar — left, right, and center — thinks that [Slaughter-House] is a plausible reading of the [Fourteenth] Amendment.

No serious modern scholar except Justice Stevens, apparently. Well, that’s not exactly fair. Stevens did not throw his support behind the Court’s reading of the 14th Amendment, but did agree with the result in the case, arguing that the state had every right to set up the butchering monopoly in New Orleans as a public health issue. He reminded us that the loser in the Slaughter-House cases was former Justice John Campbell, who was trying to block Reconstruction and contort the 14th Amendment into protecting white power, so we should probably stop pretending the Slaughter-House decision was the worst thing ever.

Then Justice Stevens fast forwarded to the decision in Maryland v. King, and that’s when things got real. Before the assembled liberals, Stevens started dissing Justice Scalia, putting the audience in the uncomfortable position of wanting to hate on Scalia, but remembering that he was on their side in this case. Justice Stevens hailed the majority opinion by Justice Kennedy, arguing that, unlike a suspicionless search of a car, taking a DNA sample cannot reveal any private, non-criminal information other than past criminal conduct. As the Blog of the Legal Times recounted:

“It seems to me that taking a DNA sample — or a fingerprint sample — involves a far lesser intrusion on an ordinary person’s privacy than a search that allows and officer to rummage through private papers,” Stevens said. “Second, the proven accuracy of DNA samples in both establishing guilt and exonerating the innocent who have been mistakenly convicted or accused, favors greater rather than lesser use of DNA evidence. Rules that unnecessarily preclude the use of such evidence may impede the search for truth without providing any meaningful protection for privacy interests.”

Justice Stevens reiterated that the program only applied to people who were arrested for violent conduct, so he does not have much concern that they’re getting a bum rap and you shouldn’t either.

Justice Stevens did make an effort to get the audience back on his side by explaining that the DNA database could be used to ensure that guns stay out of the hands of violent criminals. Matthew Huisman said the “line elicited sporadic applause.” That’s one way of putting it. It felt to me more like a shocked audience decided to cling to the one bit of philosophical love they were getting from the strident nonagenarian on stage.

But his biggest justification for the decision was the impact he believes it will have on deterring rapists. Justice Stevens hypothesized that when rapists know that a DNA database exists and that police have the right to cross-check DNA gathered after any subsequent arrest for violent conduct, they will stop raping. Justice Stevens is probably overestimating the strategic decision-making of rapists.

As he concluded his defense of the DNA case that outraged at least 70 percent of the audience when it came down, Justice Stevens dropped the mic and threw up a double bird while backing away from the podium. Or at least I assume I didn’t have a great view.

Former Justice Stevens Supports Majority in DNA Swab Case [The BLT: The Blog of the Legal Times]

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