Dissent and Vindication: Justice Stevens and Bowers v. Hardwick


As my colleagues David Gans and Xan White so ably demonstrated in their post here, Justice John Paul Stevens will leave the Court with a remarkable legacy of landmark opinions in a broad range of cases that have preserved our Constitution’s most enduring values. Many times in his long career, though, Justice Stevens was not in the Court’s majority. In a number of those instances, he then wrote forceful dissents that carefully exposed the flaws in the Court’s reasoning and ruling. Perhaps the most famous example is Justice Stevens’s dissent in Bush v. Gore, the 5-4 decision in which the Court’s conservatives handed the presidency to George W. Bush.

The most recent example, of course, is Justice Stevens’s 90-page dissent in Citizens United v. FEC, in which Justice Stevens brilliantly demonstrated the extent to which the Court’s five conservatives had thoroughly ignored constitutional text and history in ruling that corporations have the same rights as individuals to spend money to influence candidate elections. Someday, as we here at CAC hope, the Court perhaps will realize the error of its ways, Justice Stevens’s dissent in Citizens United will command a majority view, and this harmful and erroneous decision will be overturned. Justice Stevens, sadly, will not be on the Court if and when that day comes.

But there is certainly good reason to believe that it will, that the Court may one day see that Justice Stevens, in dissent, was right about the Constitution all along. Look no further than Bowers v. Hardwick, the infamous 1986 ruling in which the Court held, 5-4, that the Constitution does not prohibit states from criminalizing private, consensual, sexual intimacy between two people of the same gender. Bowers allowed states to make gay people criminals by definition and shamefully put the Court’s imprimatur on the desire of some states to punish gay people based solely on majoritarian notions of morality.

Justice Stevens would have none of it. In a ringing dissent, he stated that:

[a]lthough the meaning of the principle that “all men are created equal” is not always clear, it surely must mean that every free citizen has the same interest in “liberty” that the members of the majority share. 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. State intrusion into the private conduct of either is equally burdensome.

Justice Lewis Powell, who cast the deciding vote in Bowers, regretted that vote almost immediately. Perhaps he had re-read Justice Stevens’s powerful dissent.

It would take nearly two decades, but the Court would finally realize that Justice Stevens was right. In Lawrence v. Texas, the Court in 2003 was once again confronted with the issue it had faced in Bowers. This time, however, it was Justice Stevens’s vision of constitutionally protected liberty, articulated in his Bowers dissent, that garnered the support of the Court’s majority. In an opinion for the Court by Justice Anthony Kennedy, joined by four other Justices, including Stevens, Justice Kennedy wrote that:

[l]iberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.

The Court in Lawrence overturned Bowers, stating that:

Justice Stevens’ analysis, in our view, should have been controlling in Bowers and should control here. Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled.

In Lawrence, Justice Stevens had the personal satisfaction of being on the Court when one of his most important dissents thankfully became a majority ruling. Although that will not be the case about his dissent in Citizens United, we can only believe that a ruling so demonstrably at odds with constitutional text and history will not endure.

As the Nation celebrates Justice Stevens’s legacy, we must be sure to remember his great dissents, and hope that more of them will ultimately be vindicated. 

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