The Flaws of the Great Justice Stevens, Fine personal qualities do not always translate into judicial virtues by Barry P. McDonald, July 20, 2019, New York Times Mr. McDonald is a law professor.
Like so many others, I was saddened to learn of the passing of Justice John Paul Stevens. He was a fellow Midwesterner, honest, self-effacing and kind, but with a strong independent streak and a passion for justice. I had the privilege of interviewing with him for a clerkship once, and then observing him up close for a year as I clerked for Chief Justice William Rehnquist. He was the quintessential gentleman and scholar.
But commendable personal qualities do not always translate into judicial virtues, particularly when it comes to the objective and consistent application of established rules of law. Justice Stevens was admirably candid about the fact that his judicial philosophy was heavily informed by his personal experiences and what they had to teach him. In his view, sound decision making was about applying reasoned judgment to the particular facts of a case. He was no doubt sincere in his desire to achieve a just result every time.
You might think that a strong sense of justice is a desirable judicial quality. But such senses are usually based on value judgments derived from personal experiences and preferences, or what we sometimes call political ideology, rather than the rule of law. What one judge believes justice requires can differ radically from the beliefs of other judges.
All of a sudden, we have gone from the rule of law to the rule of individuals.
Among Justice Stevens’s liberal admirers, his flexible approach to the law has been cause for celebration: He was the moderate Republican appointed by President Gerald Ford who evolved into the enlightened liberal leader of an increasingly conservative Supreme Court. But whatever your political leaning, this narrative should be troubling, for it defines Justice Stevens’s career by reference to a shifting political ideology, not a commitment to a consistent, impartial approach to adjudication.
The inconsistencies of Justice Stevens’s flexible approach are illustrated by his changing positions on important questions of constitutional law.
Early in his tenure, for instance, he voted to strike down affirmative action programs, to uphold laws imposing the death penalty and to uphold restrictions on sexually explicit expression. Later in his career, however, he changed his position on all of these issues. “I have relied on my own experience,” he wrote in explanation of his new view on the death penalty. He would elsewhere speak of undergoing “a learning process while serving on the bench.”
The answer to whether a law is constitutional, however, should not depend on what a particular judge has learned from his or her evolving experience. It should be based on neutrally applied methods of interpretation that seek to ascertain the democratic intent behind a constitutional provision and to fairly apply that intent in light of modern societal conditions.
Another problem with such a flexible “experience and justice” approach is that it can conflict with rules the court has established for deciding various issues.
When that happens, a judge will sometimes manipulate those rules to achieve the desired result in a particular case, causing confusion for lower courts and lawyers everywhere.
For instance, in a 2000 free speech ruling that upheld a law barring anti-abortion protesters from speaking in proximity to patients entering abortion clinics, Justice Stevens reasoned — completely implausibly — that the law did not target the type of speech involved. Notably, under established rules, if the law did target the type of speech involved, it would have been invalidated. Such doctrinal legerdemain contributed to a perception that Justice Stevens could be idiosyncratic and unpredictable in his approach to cases.
One of the most serious problems with a values-based approach to decision making is the temptation it creates to discern rights in the Constitution that are not actually specified in that document. Justice Stevens, like many of his liberal colleagues, was in favor of deriving robust abortion and sexual privacy rights from a constitutional provision (“due process”) that merely ensures that people are treated fairly by the government when it deprives them of property or liberty.
He also wrote opinions that extended such rights to corporations, bucking a trend embraced by the Supreme Court since the 1930s of rejecting such rights in the economic sphere.
None of these shortcomings, of course, was unique to Justice Stevens. (I should also emphasize that he wrote far more high-quality opinions than those of the sort I single out here for criticism.) Other justices, including those who profess to adhere to textual and historical methods of interpretation that minimize the role of personal value judgments and policy preferences, have also been guilty of imposing such judgments and preferences in the guise of legal interpretation.
But Justice Stevens was atypically (and laudably) forthright about his “experience and justice” approach to decision making, which made it all the easier to see. Unfortunately, there is no question that these more subjective judicial approaches are having ill effects on the court and our country. They are turning confirmation proceedings for court nominees into political warfare and causing a crisis of legitimacy for the court.
Where does all of this leave Justice Stevens’s legacy? I believe that Justice Stevens will be rightly celebrated as a judge who cared passionately about doing justice as he saw it and who possessed a character and intellect that enabled him to achieve much in that regard. But his illustrious career should be viewed in its full context — as part of a judicial culture that is in vital need of reform.
Refer also to:
Damaging the Charter: Ernst vs Alberta Energy Regulator by Lorne Sossin, Dean Osgoode Hall Law School, York University. Comment: “It causes one to question how much both the plurality and the dissent were driven by the desired end-state of the judgment, rather than consistency in applying principles of public law.”
Who orders a new hearing for a Supreme Court of Canada ruling where 9 justices knowingly published a lie and sent it to the media? Who “slaps” Justice Rosalie Abella for knowingly lying in her ruling and belittling the applicant?