Robert F. Nagel: Stevens, the Radical
[Robert F. Nagel is the Rothgerber professor of constitutional law at the University of Colorado Law School.]
When Justice John Paul Stevens retires this summer, he will have served on the Supreme Court for 35 years. Known for his bow ties and polite questioning of lawyers during oral argument, Stevens is the archetypical elite lawyer. He comes from a wealthy family, attended prestigious schools, clerked for a Supreme Court justice, worked as an antitrust lawyer in a private firm, did a stint of public service (investigating corruption on the Illinois Supreme Court), and then was appointed to the federal bench.
You might expect, then, that Justice Stevens would take a conventional approach to the task of judging. But, in fact, his approach to one central aspect of that task—interpreting the Constitution—is strikingly unorthodox. In ways that are sometimes admirable and sometimes disturbing, Stevens’s opinions in constitutional cases present a fundamental challenge to widely accepted legal norms and practices.
The nature of this challenge was put fully on display earlier this year when Stevens dissented from the Court’s determination that freedom of speech protects expenditures by corporations and unions during federal elections. This decision, titled Citizens United v. Federal Election Commission, was, of course, the subject of President Obama’s critical remarks in front of the justices during his State of the Union address.
Stevens’s dissent in Citizens United is extraordinary. Fully 90 pages long, it attacks virtually every aspect of the majority opinion. It is detailed, intellectually ambitious, and alternately careful and passionate. It is also radical in its implications.
Consider, for example, Justice Stevens’s treatment of historical evidence about whether the framers intended the Free Speech Clause to protect corporations. Stevens acknowledges that his research has not identified any statements “from the founding era showing that corporations were understood to be excluded from the First Amendment’s .  .  . guarantee.” He then notes that “Justice Scalia adduces no statements to suggest the contrary proposition.” He concludes that “we cannot be certain how a law [restricting corporate speech] meshes with the original meaning of the First Amendment.”
It is not novel for a judge to decide that history does not resolve a particular constitutional argument. But Stevens makes a much broader point. Taking aim at Scalia’s basic interpretive philosophy, Stevens questions whether an “impartial judge’s application of [historical materials] is likely to yield more determinate answers .  .  . than his or her views about sound policy.”...
Cynics and realists often claim that the imposition of the justices’ policy preferences is what is really going on in constitutional cases. But it is unusual to see this possibility so candidly embraced by a member of the Court. Various opinions of Justice Stevens, however, have long pointed in this direction. He is known for dispensing with established legal doctrines and basing his decisions on his own “balance” of the competing interests at stake in the controversy....
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When Justice John Paul Stevens retires this summer, he will have served on the Supreme Court for 35 years. Known for his bow ties and polite questioning of lawyers during oral argument, Stevens is the archetypical elite lawyer. He comes from a wealthy family, attended prestigious schools, clerked for a Supreme Court justice, worked as an antitrust lawyer in a private firm, did a stint of public service (investigating corruption on the Illinois Supreme Court), and then was appointed to the federal bench.
You might expect, then, that Justice Stevens would take a conventional approach to the task of judging. But, in fact, his approach to one central aspect of that task—interpreting the Constitution—is strikingly unorthodox. In ways that are sometimes admirable and sometimes disturbing, Stevens’s opinions in constitutional cases present a fundamental challenge to widely accepted legal norms and practices.
The nature of this challenge was put fully on display earlier this year when Stevens dissented from the Court’s determination that freedom of speech protects expenditures by corporations and unions during federal elections. This decision, titled Citizens United v. Federal Election Commission, was, of course, the subject of President Obama’s critical remarks in front of the justices during his State of the Union address.
Stevens’s dissent in Citizens United is extraordinary. Fully 90 pages long, it attacks virtually every aspect of the majority opinion. It is detailed, intellectually ambitious, and alternately careful and passionate. It is also radical in its implications.
Consider, for example, Justice Stevens’s treatment of historical evidence about whether the framers intended the Free Speech Clause to protect corporations. Stevens acknowledges that his research has not identified any statements “from the founding era showing that corporations were understood to be excluded from the First Amendment’s .  .  . guarantee.” He then notes that “Justice Scalia adduces no statements to suggest the contrary proposition.” He concludes that “we cannot be certain how a law [restricting corporate speech] meshes with the original meaning of the First Amendment.”
It is not novel for a judge to decide that history does not resolve a particular constitutional argument. But Stevens makes a much broader point. Taking aim at Scalia’s basic interpretive philosophy, Stevens questions whether an “impartial judge’s application of [historical materials] is likely to yield more determinate answers .  .  . than his or her views about sound policy.”...
Cynics and realists often claim that the imposition of the justices’ policy preferences is what is really going on in constitutional cases. But it is unusual to see this possibility so candidly embraced by a member of the Court. Various opinions of Justice Stevens, however, have long pointed in this direction. He is known for dispensing with established legal doctrines and basing his decisions on his own “balance” of the competing interests at stake in the controversy....