As I looked back on Justice John Paul Stevens’s life and career, I did not immediately think of his many majority opinions for the Supreme Court — opinions establishing the law of our land on matters of war in the era of global terrorism, limits to the death penalty and more. I didn’t even think of the exceptional dissents from his closing years on the court in cases addressing campaign finance laws and gun restrictions. Instead, it was two of his dissenting opinions from the 1980s that first came into my mind when I learned that he died on Tuesday at 99 years old, and they haven’t left it in the time since.
Justice Stevens’s dissenting opinions in Bowers v. Hardwick and Texas v. Johnson represent the starting place for my thinking on his legacy. In Johnson, he expressed a view probably surprising to younger people reading about his death who think of him only as a liberal justice whose opinions shifted sharply away from those in the Republican Party in the decades after President Gerald Ford nominated him to the court in 1975. He wrote a passionate dissent in Johnson, the 1989 case that overturned a Texas law that made burning an American flag a crime.
“The question is unique,” Justice Stevens wrote of a nation’s flag, calling the American flag “a symbol of freedom, of equal opportunity, of religious tolerance, and of good will for other peoples who share our aspirations.” He continued, “ … in my considered judgment, sanctioning the public desecration of the flag will tarnish its value.”
His dissenting opinion was the sort of fulsome defense of the sacred position of the flag that one might expect from a Navy veteran who was born in the aftermath of the first world war, served in World War II and lived through all of the conflicts and wars and crises that America has been involved with since.
Bowers was the 1986 case upholding laws criminalizing same-sex sodomy. Justice Stevens in his dissent called for a guarantee of basic protections for gay, lesbian and bisexual Americans that was rejected by a majority of the court at the height of anti-gay panic during the AIDS epidemic.
“From the standpoint of the individual, the homosexual and the heterosexual have the same interest in deciding how he will live his own life, and, more narrowly, how he will conduct himself in his personal and voluntary associations with his companions,” he wrote. “State intrusion into the private conduct of either is equally burdensome.”
It was not until nearly 20 years later that his view would be affirmed by a majority of the court. Justice Anthony Kennedy, in his 2003 opinion in Lawrence v. Texas, wrote for the court that the Bowers decision had been incorrect back in 1986, that Justice Stevens’s view was the correct one and that Justice Stevens’s analysis was now the constitutional law of the country.
I think Justice Stevens was very right in one of those cases and very wrong in the other. For me, a gay man proud to see basic equality of citizenship extended to me — with continued possibility of extending that citizenship further in a set of employment discrimination cases before the justices this fall — Justice Stevens’s opinion in Bowers was a sign that those different from me could see beyond their own vantage point when judging and consider the broader reality of the world in which they live.
Johnson, on the other hand, is a piece of the puzzle that has taught me over time that our experiences do matter. I disagree with Justice Stevens’s opinion, but I know that many people think he was absolutely right and that the court is stronger because his opinion was a part of the consideration of the case.
What he brought to these cases — and to those he weighed in on even after his retirement — is a reminder that our lived reality matters, whether we are judges or in any job where we interact with others, assess the world around us or exert some control over others. In other words, most jobs.
The lessons I took from those dissents — the importance of seeking to understand others’ experiences and of understanding that our own experiences inevitably shape the way we see the world — is what I’m left thinking about when I think about Justice Stevens.
If the justices are to represent and hold the respect of the entire country, a diversity of voices on the Supreme Court matters for these reasons. For the court to continue to rule on matters of national importance, the justices need to have the desire to view the world from outside of their experiences and the humility to understand that their views are shaped by their own experiences.
It has been especially evident over the past week that a diversity of perspectives is essential across government — from Congress to the executive branch — to insist that people of all colors and backgrounds are included when we talk about what it means to be Americans. A diversity of perspectives matters in media as well, to equip newsrooms to seek out and understand the many stories that need to be told. A diversity of perspectives is needed in law enforcement — from police to prosecutors to defense lawyers to state attorneys general — if we are to see lives like that of Eric Garner, who died at the hands of a New York police officer five years ago this week, valued in our nation. The same need is present in most jobs and enterprises across the country.
If we expect to continue to find a path forward — a way in which all of us can continue to live under that United States flag — the kind of shared understanding that seems to be lacking in so many areas today must be reached, one that acknowledges the role our own experiences play in creating our views and one in which we strive mightily, and genuinely, to understand the lives of others.
It is truly unfortunate that John Paul Stevens will not be around to help us in finding that shared understanding. But his words will live on to help us on our path.