Justice Stevens Calls On History He Lived

By Charles Lane
Washington Post Staff Writer
Wednesday, June 27, 2007

Justice John Paul Stevens, the third-oldest person ever to sit on the Supreme Court, turned 87 on April 20. If he's still on the court 142 days from now, he'll overtake Roger B. Taney, who died as chief justice in 1864 at the age of 87 years 209 days.

Stevens still has a long way to go if he wants to catch Oliver Wendell Holmes Jr., who was 90 when he retired from the court in 1932. But he has already started invoking his considerable life experience to buttress his opinions.

On Monday, Stevens dissented in the case of the Alaska teenager who was suspended for displaying a "Bong Hits 4 Jesus" banner at a school event. While a majority of the court said the Constitution does not protect pro-drug student speech, Stevens took the historic view.

Harking back to Prohibition, which began three months before Stevens's birth and ended a month before he turned 13 in 1933, Stevens compared the current marijuana ban to the abandoned alcohol ban and urged a respectful hearing for those who suggest "however inarticulately" that the ban is "futile" and that marijuana should be legalized, taxed and regulated instead of prohibited:

"[T]he current dominant opinion supporting the war on drugs in general, and our anti-marijuana laws in particular, is reminiscent of the opinion that supported the nationwide ban on alcohol consumption when I was a student. While alcoholic beverages are now regarded as ordinary articles of commerce, their use was then condemned with the same moral fervor that now supports the war on drugs."

Stevens knows something about Prohibition -- he was born and raised in Chicago, where Al Capone and other organized-crime figures controlled hundreds of speakeasies. And he knows something about the moral fervor of Prohibition's supporters, because one of them was his mother, Elizabeth Stevens, who used to say, "Lips that taste wine will never touch mine."

His father, Ernest Stevens, was a hotelier who carefully obeyed the alcohol ban in his establishments but who predicted in 1932 court testimony that his business would benefit from the end of Prohibition, because diners would abandon the speak-easies for legal restaurants like the ones in his hotels.

"[J]ust as Prohibition in the 1920's and early 1930's was secretly questioned by thousands of otherwise law-abiding patrons of bootleggers and speakeasies," Stevens wrote, "today the actions of literally millions of otherwise law-abiding users of marijuana, and of the majority of voters in each of the several States that tolerate medicinal uses of the product, lead me to wonder whether the fear of disapproval by those in the majority is silencing opponents of the war on drugs."

This was the second time in recent years that memories of Prohibition helped shape Stevens's view on a case. Dissenting from the court's 5 to 4 decision overturning state laws against direct shipments of out-of-state wine in 2005, Stevens argued that the majority misinterpreted the 21st Amendment to the Constitution, which repealed Prohibition. He cited his own "recollection" of "the historical context."

And in a case about a police car chase earlier this term, Stevens made reference to the long-ago days when he was a new driver and "most high-speed driving took place on two-lane roads rather than on superhighways" and "split-second judgments about the risk of passing a slow-poke in the face of oncoming traffic were routine."

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