JUSTICE STEVENS CALLS ON HISTORY HE LIVED

'Bong Hits' Dissent Points to Prohibition

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."