Retired Justice John Paul Stevens has not been shy about commenting on Supreme Court decisions since he left the bench. As Lyle Denniston reports on SCOTUSBlog, Justice Stevens has commented on several decisions released this term. Interestingly enough, Justice Stevens’ comments indicated he would have had an unusual partner in some cases: Justice Alito. In a speech this past Tuesday, for instance, Justice Stevens said he would have joined Justice Alito’s lone dissent in Snyder v. Phelps, the funeral picketing case.
It might interest you to know that if I were still an active justice, I would have joined [Alito’s] powerful dissent in the recent case holding that the intentional infliction of severe emotional harm is constitutionally protected speech. The case…involved a verbal assault on the private citizens attending the funeral of their son — a Marine corporal killed in Iraq. To borrow Sam’s phrase, the First Amendment does not transform solemn occasions like funerals into ‘free-fire zones.’
As Denniston notes, these remarks bring to mind Justice Stevens opinion in Texas v. Johnson, in which he dissented from a 5-4 decision holding Texas’ prohibition on flag burning violated the First Amendment. But that’s not all. Justice Stevens also said that he would have joined Justice Alito’s majority opinion in NASA v. Nelson.