Bench Memos

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True Confession in Las Vegas


As noted earlier, Justice Stevens fessed up in Sin City yesterday. According to an admiring Linda Greenhouse in today’s New York Times, Stevens confessed to a Las Vegas audience that twice last term he voted to uphold laws which, were he a legislator, he would have voted against as a policy matter. One case was Kelo, the already infamous Takings case from Connecticut. The other was the medical marijuana case, Gonzales v. Raich.

Now, some people may care which policies members of the Court would pursue if they were legislators. But it’s a bad sign that its is Big News when a Justice announces that, on no less than two occasions, he actually followed the law rather than his own prepossessions.

It would indeed be Big News — or at least, very interesting — if Stevens had instead said something like this: “My policy preferences are neither here nor there, and I assume nobody came today to hear about them. But in two cases last term I came to the conclusion that the Court could not strike down laws which, were I a legislator, I would have voted against because they were unconstitutional. The Court was obliged to decline to declare these acts unconstitutional because of limitations inherent to the judicial task, such as the need to lay down bright line rules, the difficulty of divining legislative intentions, and like matters. But I guess this just goes to show that there is often a big difference between what the Constitution requires and the constitutional limitations amenable to judicial enforcement.”


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