Is Justice Stevens Sending a Message?

A New York attorney with a careful eye sends along the following thought:

Today is Stevens-doesn’t-completely-agree day at the Supreme Court, with 3 opinions coming out each accompanied by a Stevens concurrence or dissent. But check out his dissent (joined by Thomas) in this antitrust case. On the last page, by way of indicating that the proper judicial role is to apply the law without regard to the judge’s personal views of its wisdom, he cites none other than Robert Bork for the view that the Robinson-Patman Act reflects a “wholly mistaken economic theory” and indicates that he personally agrees with Bork’s view as a policy matter, although he believes (contra the majority) that a violation of the statute has been shown in this case. It’s as if he thought this would be a good day to tell someone that public agreement with Judge Bork on a particular issue is not inconsistent with serving on the Supreme Court.

Whether or not this is a coincidence, it is interesting that as the Senators begin their grilling of Judge Alito, Justice Stevens reminds us all that one’s personal policy views need not (indeed, should not) dictate one’s legal views.

Jonathan H. Adler — Jonathan H. Adler teaches courses in environmental, administrative, and constitutional law at the Case Western Reserve University School of Law.

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