ABC News now has online a video clip in which Justice Stevens amplifies a bit his remarkable claim (which I first mentioned here) to be a “judicial conservative”: “for example, do you follow prior decisions and so forth, things like that, that stand to identify one as a [judicial] conservative?” Without knowing what Stevens means by “and so forth, things like that,” I can’t be sure that I understand his definition. But it seems safe to say that the conventional understanding of judicial conservatism—allegiance to originalism or to principles of judicial restraint—is not part of Stevens’s definition.
But let’s examine Stevens’s suggestion that “follow[ing] prior decisions” is a mark of a judicial conservative. To be sure, stare decisis is an important judicial principle. But no justice has ever regarded it as the highest principle. And a justice’s oath to support and defend the Constitution would seem generally to require him to reject previous rulings that he determines are constitutionally unsound. As then-D.C. Circuit nominee John Roberts put it, “[O]bviously if the decision is wrong, it should be overruled. That’s not activism. That’s applying the law correctly.” Moreover, there are lots of cases with no governing precedent, so how a justice decides those cases would be particularly revealing of the justice’s judicial approach.
In any event, the idea that Stevens has any particularly strong allegiance to precedent is farfetched. Where was that allegiance in Rasul v. Bush, where Stevens’s majority opinion ruling that the habeas statute extends to aliens detained by the United States military overseas, outside the sovereign borders of the United States and beyond the territorial jurisdictions of all its courts was aptly described by Scalia’s dissent as “a novel holding [that] contradicts a half-century-old precedent on which the military undoubtedly relied”? Where was it in Lawrence v. Texas, which overruled Bowers v. Hardwick? Where was it in Stevens’s continued resistance to lines of precedent—on the Eleventh Amendment and the Commerce Clause, to name a couple that come to mind—with which he disagrees? Indeed, it is passing strange that the justice widely regarded as the most idiosyncratic since Justice Douglas should dare to suggest that he has some special fealty to precedent.
I don’t claim familiarity with the literature, but apparently statisticians (see here for one example) have verified what most serious Court-watchers already understand: that, by conventional labels, Stevens is the most liberal member of the Court. (As I discuss here, political-sounding labels are at best crude shorthands.)
What Stevens’s claim to be a “judicial conservative” really shows, I think, is what his judicial career also, sadly, shows: that he regards words (including legal texts) as utterly protean, capable of bearing whatever utterly implausible meaning he chooses to assign them.