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Stevens, the Radical

The retiring justice’s opinions were anything but conventional.

Apr 26, 2010, Vol. 15, No. 30 • By ROBERT F. NAGEL
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If the justices should defer to the political branches on campaign finance regulation, it is difficult to imagine any constitutional issue where deference would not also be warranted. There are, after all, special reasons to be suspicious of congressional regulation of federal elections. To begin with, as Justice Scalia has argued, the temptation to regulate so as to protect incumbents is an obvious reason for judicial oversight rather than deference.

More generally, the dominant consensus in the legal profession is that the judiciary should vigorously protect freedom of speech, especially political speech. One reason is that free speech is thought to be a foundational right, essential for both individual and collective decision making. Another is the natural inclination for politicians to stifle speech that they (or their constituents) find offensive or with which they disagree.

In short, Stevens’s willingness to defer to the political branches on the constitutionality of the regulation of campaign speech represents a radical departure from widely accepted notions about the role of the judiciary. This kind of deference, while not typical of Stevens’s approach to constitutional law, should not be dismissed as mere opportunism. His deference in Citizens United flows naturally from his equally radical equation of constitutional law and sound policy. Taken to its logical conclusion, his position would support a major alteration in the American practice of relying primarily on the judiciary to enforce constitutional values.

The usual argument for judicial enforcement of the Constitution, however, relies only partially on the separation of law and policy. It also rests on the deeply ingrained American belief that the Constitution has superior status to ordinary laws. Thus it is commonly thought that judges have no choice when faced with an unconstitutional statute. The Constitution must prevail.

In Citizens United, Stevens challenges even this bedrock idea. In some of the most interesting sections of his dissent, Justice Stevens insists that campaign finance legislation facilitates free speech values. He argues, for instance, that it keeps the voices of corporations from drowning out less well-financed voices and that it promotes political participation by reducing public cynicism about politics. These arguments mean, as Stevens puts it, that the statute “pit[s] competing First Amendment values against each other.”

Stevens’s argument that the restriction of speech can improve the system of public debate—a position that he has also taken in other cases—makes him one of the few Supreme Court justices to acknowledge that there can be legally paramount values on both sides of a free speech dispute. This is an arresting idea, but it cuts against the assumption that a statute necessarily has inferior legal status in comparison to the Constitution. The statute, after all, is implementing free speech values.

The judicial duty to give effect to the superior legal authority is compromised by Stevens’s position. Instead of asking whether a statute is inconsistent with the Constitution, a judge must ask whether on balance the statute improves the system of freedom of speech more than it detracts from it. Deference to the political branches seems especially appropriate when constitutional values are served by the statute, particularly when the relevant judgments are ones of degree and practicality.

Constitutional values are on both sides of many disputes, including those outside of the arena of free speech. Indeed, every time the Supreme Court expands the definition of any constitutional right, it is constricting the reserved powers of the states. Justices normally resist full recognition of this complication because, with superior legal values on both sides of the controversy, it is harder to justify in a plausible way an authoritative resolution.

Towards the end of his exhaustive dissent, Stevens sums up by charging that the majority’s decision “elevates .  .  . assertion over tradition, absolutism over empiricism, rhetoric over reality.” Although intended to apply specifically to Citizens United, Stevens’s bleak depiction applies to a broad array of constitutional decisions, including a number authored by Stevens himself.

The sad fact is that in the modern era the function of judicial enforcement of the Constitution has too often been to dismantle traditional practices and beliefs, to subordinate practicality to abstraction, and to provide the solace of simplification. It is astonishing and sobering that Justice Stevens could have vigorously participated in this destructive activity for 35 years while harboring the seeds of a fundamental critique.

Robert F. Nagel is the Rothgerber professor of constitutional law at the University of Colorado Law School.

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