U.S. Supreme Court

Stevens Says He Would Have Sided with Alito’s Lone Dissent in Funeral Protest Case


Justice Samuel A. Alito Jr. would have had support for his lone dissent in a case protecting funeral picketers from tort suits if Justice John Paul Stevens were still on the court.

In a speech before the Federal Bar Council in New York City on Tuesday, Stevens said he would have joined Alito’s dissent in Snyder v. Phelps, SCOTUSblog reports. The majority ruled that picketers who protest tolerance for homosexuality at military funerals cannot be sued for emotional distress because they are protected by the First Amendment. Alito said the plaintiff, the father of a slain serviceman, was not a public figure and there was no First Amendment right to “brutalize” him.

“It might interest you to know that if I were still an active justice, I would have joined [Alito’s] powerful dissent,” Stevens said in the speech, released by the U.S. Supreme Court on Thursday. “To borrow Sam’s phrase, the First Amendment does not transform solemn occasions like funerals into ‘free-fire zones.’ ”

Stevens dissented in the 1989 Supreme Court case that protected flag-burning under the First Amendment. In an October speech, Stevens said he still opposes the majority decision in the case, Johnson v. Texas.

Stevens gave another shout out to Alito in his speech on Tuesday, SCOTUSblog says.

Stevens said he would have joined Alito’s “excellent majority opinion” in an 8-0 January decision that upheld background checks for NASA employees. The opinion in NASA v. Nelson assumed that there is a constitutional right of informational privacy without deciding the issue. Justice Antonin Scalia wrote a concurrence, joined by Justice Clarence Thomas, saying there is no such right.

According to SCOTUSblog, Stevens appeared to be praising Alito for acknowledging that new rights can be found in the constitutional concept of liberty.

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