Bench Memos

Jeffrey Rosen on Justice Stevens

Jeffrey Rosen has a long and interesting article on Justice Stevens in the forthcoming issue of the New York Times Magazine.  Rosen paints a very sympathetic (one might even say fawning) portrait of Stevens:  “I was especially impressed with Stevens’s character: his engagement, curiosity, combination of toughness and vision, strong internal compass and refusal to go along with the crowd, his decisiveness, analytical power, modesty (but not false modesty), devotion to the court as a steady institution and sense of wonder and gratitude for the remarkable opportunities that had come his way.”  But the careful reader will discern the incoherence and idiosyncratic willfulness that mark Stevens’s Supreme Court career.


Stevens claims to be a “judicial conservative,” which (according to Rosen) “he defined as someone who tries to follow precedents and ‘who submerges his or her own views of sound policy to respect those decisions by the people who have authority to make them.’”  (Emphasis added.)  I’ll pass over for now whether someone who aims to preserve the liberal activist precedents of the past four decades deserves the title of “judicial conservative” more than someone who aims to be faithful to the actual Constitution.  I’d instead like to show how Stevens’s own words show that he is not someone “who submerges his … own views of sound policy to respect those decisions by the people who have authority to make them.”  Consider:


1.  Stevens states (in what Rosen presents as the first of the “identifiable ideas and themes” in Stevens’s legal thinking) that “one of the overriding principles in running the country is the government ought to be neutral….  It has a very strong obligation to be impartial, and not use its power to advance political agendas or personal agendas.”  (Emphasis added.)  What a remarkable and bizarre notion—that a government elected by the people to advance a political agenda should not use its power to advance that political agenda!  So much for even recognizing the general scope of political authority.


2.  On the specific matter of abortion, Rosen refers to Stevens’s kooky argument that abortion regulations violate the Establishment Clause.  He then quotes Stevens: 


“I think the less judges have to decide the better, and I frankly look at who should decide this,” he told me. “Obviously, I think basically the woman is the person most affected by it and has tremendously important interests; better to have her decide these questions with her own counselors and guidance than to have judges and legislators deciding something like this.”


Stevens’s judgment is plainly a pure policy judgment, not a judgment about where the Constitution leaves decisionmaking on abortion.  (Plus, of course, he is all in favor of judges’ deciding that the matter is off limits to legislators; fidelity to the principle of “the less judges have to decide, the better” would lead to deference to legislative enactments.) 


3.  Rosen provides a truly bizarre anecdote about how Stevens’s World War II experience shaped Stevens’s views on the death penalty:


[Stevens] helped break the code that informed American officials that Adm. Isoroku Yamamoto, the commander of the Japanese Navy and architect of the Pearl Harbor attack, was about to travel to the front. Based on the code-breaking of Stevens and others, U.S. pilots, on Roosevelt’s orders, shot down Yamamoto’s plane in April 1943.

Stevens told me he was troubled by the fact that Yamamoto, a highly intelligent officer who had lived in the United States and become friends with American officers, was shot down with so little apparent deliberation or humanitarian consideration. The experience, he said, raised questions in his mind about the fairness of the death penalty. “I was on the desk, on watch, when I got word that they had shot down Yamamoto in the Solomon Islands, and I remember thinking: This is a particular individual they went out to intercept,” he said. “There is a very different notion when you’re thinking about killing an individual, as opposed to killing a soldier in the line of fire.” Stevens said that, partly as a result of his World War II experience, he has tried on the court to narrow the category of offenders who are eligible for the death penalty and to ensure that it is imposed fairly and accurately.


Once again, Stevens’s judgment is a pure policy judgment that has nothing to do with where the Constitution vests decisionmaking authority on the death penalty.  Stevens’s particular sympathy for Admiral Yamamoto also seems badly confused.  I suppose that we can be grateful that Osama bin Laden never lived in the United States and never became friends with the Americans he killed, or Stevens’s rulings in national-security cases might be even worse than they are.


4.  Rosen identifies as another theme of Stevens that “the court has an obligation to protect ideals of equality and liberty in light of the nation’s entire history, rather than legalistically parsing the original understanding of the Constitution.”  (Emphasis added.)  Like the usual “living Constitution” rhetoric, appeals to construing the Constitution “in light of the nation’s entire history”—what determinate meaning could that possibly have?  how could it legitimately expand the realm of judicial power?—enable judicial lawlessness.  Disparaging serious examination of original meaning as “legalistic[] parsing” is epithet-flinging, not serious argument.

Ed Whelan — Ed Whelan is a leading commentator on nominations to the Supreme Court and the lower courts and on issues of constitutional law.

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