Justice John Paul Stevens twice voted to outlaw burning the U.S. flag, in memorable dissents that emphasized the flag's great symbolic value. Now, however, the 86-year-old justice says there is no need to amend the Constitution to protect Old Glory.
In 5-4 decisions in 1989 and 1990, the Supreme Court held that burning the flag is protected by the First Amendment.
Problem solved?
"Ironically, those decisions seem to have solved the problem because no one burns flags anymore," Stevens said in a speech to the Chicago Bar Association in September. The justice's speech was recently aired on C-SPAN.
Congress has continued to try to amend the Constitution to permit legislation that would prohibit desecration of the flag. The Senate fell one vote short of the required two-thirds majority in June.
In 1989, Stevens, a World War II veteran, evoked images of the D-Day assault on Omaha Beach in writing that if liberty and equality are worth fighting for, "it cannot be true that the flag that uniquely symbolizes their power is not itself worthy of protection from unnecessary desecration."
Hedged bet
He allowed then for the possibility that the court's majority might have gotten it right. "Conceivably, that value will be enhanced by the Court's conclusion that our national commitment to free expression is so strong that even the United States, as ultimate guarantor of that freedom, is without power to prohibit the desecration of its unique symbol. But I am unpersuaded."
Stevens said in Chicago he remains persuaded that he interpreted the Constitution correctly and continues to be proud of his dissents in the flag desecration cases.
Yet he paid homage to the five justices - William Brennan, Thurgood Marshall, Harry Blackmun, Antonin Scalia and Anthony Kennedy - who carried the day in both cases.
"If one were to burn a flag today, the act would convey a message of freedom that ours is a society that is strong enough to tolerate such acts by those whom we despise," Stevens said. "Today, one could not burn a flag without reminding every observer that we cherish our freedom."
Chief Hamlet Justice
Justice Anthony Kennedy, one of several Shakespeare enthusiasts on the court, plans to reprise his role as the presiding judge in the mock murder trial of a young man whose best defense may be that he was insane at the time.
That Hamlet killed Polonius is beyond dispute. But his motivation and mental state still are very much in question.
Kennedy will take the stage on the evening of March 15 - the ides, but wait, that's a different play - for a mock trial of the tragic Danish prince. The event is part of a six-month Shakespeare festival in Washington that is a co-production of the John F. Kennedy Center for the Performing Arts and the Shakespeare Theatre Company.
In all but one year since 1994, at least one Supreme Court justice has taken part in a mock trial that uses a Shakespeare play to explore the American legal system.
Kennedy will be replacing Justice Ruth Bader Ginsburg, who recently concluded a four-year run as a presiding judge in the mock trials.
In 1994, Kennedy oversaw a mock trial of Hamlet for the murder of Polonius. While conversing with his mother, Hamlet hears rustling behind a curtain. He lunges with his sword and kills Polonius, who has been eavesdropping on the conversation.
Until he sees his victim, Hamlet believes he killed King Claudius, who earlier had killed Hamlet's father.
The defense argued that Hamlet was clinically depressed when he killed Polonius. Prosecutors said Hamlet was trying to kill Claudius to avenge his father and only feigned madness to protect himself.
The jury in 1994 did not buy the defense. By a 10-2 vote, it ruled that Hamlet was sane and responsible for his actions.
The Supreme Court did not hear an appeal.