In recent years, American political life has been marked by an increased level of political polarization. In Congress, the ever-sharper division between Democrats and Republicans has blocked any sensible political consensus. The pains of partisanship are also (echoed on the Supreme Court, where there is now a perfect alignment: the four liberal members of the Court were all appointed by Democratic presidents, and the five conservative members were appointed by Republican presidents. The current alignment represents a genuine departure from the past when liberal justices from Earl Warren, to William Brennan, to David Souter, to John Paul Stevens, were all appointed by Republican presidents.
At the present moment, the most pronounced symbol of our political unrest is Justice Stevens, the recent author of the much discussed book, Five Chiefs. In that book, he reflects on five Chief Justices—Fred Vinson, Earl Warren, Warren Burger, William Rehnquist, and John Roberts—whom he knew. Learning something about their personalities fills in the gaps in our knowledge of these important public officials. On the other hand, delving into the judicial output of the Supreme Court has a real downside. Justice Stevens’ public comments will have, I fear, the effect of diminishing the Supreme Court and, alas, of Justice Stevens himself. Whatever the merits of the book, the multiple interviews that he has given about the book have distilled its thesis to a few quotations that have the unintended consequence of conveying the weakness of his intellectual thought.
In making this claim, I do not want to be understood as disagreeing with whatever Justice Stevens writes. Quite the opposite. As a classical liberal thinker, I often break sharply with the so-called conservative majority on a wide number of issues, and think that some of Stevens’ opinions should be regarded as landmarks in the law. I will discuss two of them briefly, before turning to the ways in which I think that his popular remarks, which have been widely quoted, have done real disservice to public discourse about the Supreme Court.
One of his ablest opinions is his dissent in the gun control case, District of Columbia v. Heller, where his analysis was far more astute on originalist grounds than the much lauded opinion of Justice Antonin Scalia. The full text of the Second Amendment reads: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
Justice Scalia’s contorted logic excised the initial clause before the words “free State” and then read the sentence fragment that remained as subject to an implied limitation that the state could regulate guns to the extent necessary to preserve health and safety. I know of no sound originalist principle that allows a justice to cut out some words from the Constitution in order to add in others that are not there in their place. In this case, it is quite dangerous because the reference to the “militia” linked this clause up to the Militia Clause of Article I, which calls for the joint federal/state control of the militia. The Second Amendment was written so that federal regulation (beyond that allowed for in Article I) could not disrupt the remainder of the constitutional scheme.
This federalism angle explains why the one place in which the Militia Clause does not apply is Washington D.C., which has no militia. Justice Stevens, in a careful and thorough originalist decision, got this matter exactly right.
Justice Stevens was also strong in his defense of individual rights against arbitrary imprisonment in his decision in Hamdan v. Rumsfield, which properly held that the president could not set up whatever kinds of military commissions to try detainees at Guantanamo Bay, given the importance of the key structural safeguards that the separation of powers imposes on the unilateral actions of the president.
Some of Stevens’ opinions are landmarks in the law. Others should be relegated to the dustbin of judicial history.
What is key about these decisions is that they show a respect for the importance of limited government in public affairs. What is so sad about Justice Stevens’ recent extrajudicial outbursts is that they go in exactly the opposite direction, by lashing out at decisions that he does not like, without worrying much whether or how they fit in with the original constitutional scheme.
The first example in this regard is his statement that he regarded the position of the Bush team in Bush v. Gore as “frivolous.” According to Politico,
Stevens recalls that he bumped into fellow Justice Stephen Breyer at a Christmas party, where the two men discussed the issue.
“We agreed that the application was frivolous,” Stevens writes. “To secure a stay, a litigant must show that one is necessary to prevent a legally cognizable irreparable injury. Bush’s attorneys had failed to make any such showing.”
“Frivolous” is a fighting word. But just what was Justice Stevens thinking? Clearly the statement is a cheap shot at those who took the opposite side in Bush v. Gore. As a matter of decorum, it seems wrong to invoke Justice Breyer’s name while he is still sitting on the Court, and wrong as well to take potshots at those like Justices Scalia and Thomas, who are also on the Supreme Court, or Chief Justice Rehnquist, who is dead. Put otherwise, all sitting justices are subject to all sorts of institutional constraints that make it inappropriate for them to respond to Justice Stevens. Knowing that, it seems wise for him to leave the harsh words to others.
On substantive matters, the picture is no better. The last thing that should be said about the decision in Bush v. Gore is that there is “no legally cognizable irreparable injury” when the presidency of the United States is at stake. To be sure, one could take the position that the recount should be allowed to go forward before its legality is decided. But what would have happened if a highly disputed recount had gone forward only for a divided court to decide that the recount should never have been allowed at all? Indeed, if Justice Stevens’ Christmas party observation was that obvious, it is passing strange that no one bothered to raise it in Bush v. Gore to begin with.
Worse still is the dismissive attitude that Justice Stevens takes toward those who disagree with him. I quite agree that the equal protection argument adopted by the five-member majority in Bush v. Gore was, to say the least, something of a stretch. But I have long believed that the three-justice opinion signed by Chief Justice Rehnquist, and Justices Scalia and Thomas, carried a lot of weight. The Florida Supreme Court had made a complete mess of the recount provisions of contested elections in a political effort to remove the control of that decision from Florida’s Secretary of State, Katherine Harris, in whom the power had been vested under state law.
To my mind, the scheme that the Florida Supreme Court applied bore no relationship to the one that the Florida legislature had enacted to govern election disputes. Under those circumstances, it was more than credible to argue the opposite position that the Florida recount was unconstitutional because it did not meet the requirement of Article I, Section 1 that “Each State shall appoint, in such Manner as the Legislature may direct, a Number of Electors” who then cast votes for president. The sad point here is that Justice Stevens simply bypasses the arguments that cut against his position.
Justice Stevens simply bypasses the arguments that cut against his position.
Justice Stevens is equally flip on the issue of campaign finance, where he still smarts from his five-four loss in Citizens United v. FEC, which struck down restrictions that Congress imposed on the use of general treasury funds (that are free of the hugely complicated regulatory approval process) by corporations and unions. In his view, the decision showed the willingness to allow corporate money to buy elections.
His major takeaway reads as follows:
Campaign expenditures pay for all kinds of things that are not speech, like polls and travel…By that theory, the Watergate burglary was a campaign expenditure and therefore was speech. That example exposes how the argument is flawed.
What on earth is he thinking? As to the first part of the argument, polls and travel for campaigns are an essential part of speech, like renting microphones and halls. Just think of the reaction if the question was whether Congress could ban all expenditures for these items regardless of the source. The second part is even worse. The general protections of the First Amendment are subject to standard limitations that include the ability of the state to prevent the use of speech in criminal activity and the use of criminal activity to support speech. For Justice Stevens to miss out on this elementary point of constitutional law is an inexcusable blunder that does not gain intellectual force simply because it is made by a former Supreme Court justice.
Yet, if we put these diversions to the side, it is still astonishing how unmoored his analysis is from the cardinal principles of the First Amendment. Without question, political speech close to an election is covered by the First Amendment. Indeed, it has to receive the greatest possible protection that the First Amendment confers. It seems clear that if individuals can speak their minds, they can use their money to hire other people to speak for them. It seems equally clear that groups of individuals have that same right. Indeed, how could freedom of the press not be a collective right?
At this point, one is hard pressed to think of any reason why the privilege of “limited liability” afforded to corporations should have any impact on the First Amendment claims for corporate speech. Justice Stevens’ dissent in the Citizens United case is one of his weakest efforts, for he speculates a set of imagined corporate and union abuses, without considering the frequency of their occurrence or the extent to which current criminal law sanctions can control these abuses.
In this instance, it is hard to resist the impression that Justice Stevens’ own rather naïve views of how the political process works leads him to believe that all corporations will speak as one to deny ordinary voters their right to control elections. He would have done far better to ponder the source of current political influence, namely the weak set of property rights that opens up endless opportunities for political intrigue by any and all interest groups. Rightly understood, Justice Stevens’ views fall squarely in the intellectually moribund progressive tradition that sees few if any constraints on the power of Congress to regulate whenever and however it chooses.
Justice Stevens veers to the opposite direction when he deals with the issue of whether the Constitution prohibits capital punishment. The starting point for any careful analysis is that part of the Eighth Amendment that provides that “nor shall cruel and unusual punishments be inflicted.” On this issue, Justice Stevens has come to regret his earlier decision to reinstate the death penalty after the Supreme Court had placed a moratorium on capital punishment in the 1972 case, Furman v. Georgia.
The retired justice would be wise to keep his disjointed and cavalier reflections to himself.
His earlier vote to reinstate the death penalty depended on the assumption that the states "had narrowed the category of death-eligible offenses and would enforce procedures that would minimize the risk of error and the risk that the race of the defendant or the race of the victim would play a role in the sentencing decision." But three decades later, he concluded that the Court, led by the conservative justices, was prepared to sustain procedures that did not meet his notions of fair process, such that he eventually concluded that the death penalty was "pointless and needless."
On this issue, I have a great deal of sympathy with Justice Stevens’ uneasiness about the death penalty. But it is hard to trace the line between that attitude and the constitutional text. The basic purpose of the “cruel and unusual punishments” clause is to prohibit certain forms of punishment. Its precise scope is left unclear, but various forms of torture, e.g., drawing and quartering, seem to fall within its natural scope. The death penalty does not seem to fall within the clause, for elsewhere in the Bill of Rights, the death penalty is expressly contemplated in dealing with double jeopardy, the presentation of cases to grand juries, and due process protections against the deprivation of life, liberty, or property.
A most unfortunate line of Supreme Court cases, which first held that this decision on the use of the death penalty was unconstitutional, set the Court on the wrong path. In his recent musings, Justice Stevens’ argument against the death penalty boils down to his judgment that the possibility of error in death cases is enough to tip the case in favor of its abolition.
In this instance, it is hard to see how this particular observation, whether true or false, is anything other than a straight political judgment unmoored from the text or purpose of the Constitution. There are in fact many individual cases in which I have been deeply troubled by the application of the death penalty. In some cases, it strikes me as a clear violation of the right to due process for the state to refuse to use DNA evidence to resolve uncertainty over the identification of the proper offender. But it is a stretch to say that procedural concerns in some cases should lead to a constitutional ban on the death penalty in all, especially since (as against the federal government) both the prohibition against cruel and unusual punishments and the guarantees of due process are both found in the Bill of Rights.
Taken as a whole, what is so troublesome about Justice Stevens’ general views is the unmistakable sense that he has erased the line between what he thinks of as politically unwise and constitutionally required. Indeed, on his view of the world, constitutional law seems to depend on his own sense of right or wrong. That attitude is surely evident by his vote to concur in the decision of Justice Anthony Kennedy in Kennedy v. Louisiana to the effect that the Eighth Amendment prohibited the use of the death penalty for child rape on the ground that he, Justice Stevens, can best detect the evolving moral sentiments in the United States, when popular opinion runs pretty strongly the other way.
There are, without a doubt, all sorts of nice moments in Five Chiefs, but none of that matters. Tell-all books by former justices cannot do much good. No matter what their qualifications, using harsh language and bizarre examples do not improve the overall quality of constitutional debate. As a constitutional matter, Justice Stevens has the perfect right to speak his mind on any issue that strikes his fancy. But as a matter of political prudence, he would be wise to keep these disjointed and cavalier reflections to himself
Richard A. Epstein, Peter and Kirsten Bedford Senior Fellow at the Hoover Institution, Laurence A. Tisch Professor of Law at New York University, and senior lecturer at the University of Chicago, researches and writes on a broad range of constitutional, economic, historical, and philosophical subjects. He has taught administrative law, antitrust law, communications law, constitutional law, corporate law, criminal law, employment discrimination law, environmental law, food and drug law, health law, labor law, Roman law, real estate development and finance, and individual and corporate taxation. His publications cover an equally broad range of topics. His most recent book, published in 2013, is The Classical Liberal Constitution: The Uncertain Quest for Limited Government (2013). He is a past editor of the Journal of Legal Studies (1981–91) and the Journal of Law and Economics (1991–2001).