When Justice John Paul Stevens retires this summer, he will have served on the Supreme Court for 35 years. Known for his bow ties and polite questioning of lawyers during oral argument, Stevens is the archetypical elite lawyer. He comes from a wealthy family, attended prestigious schools, clerked for a Supreme Court justice, worked as an antitrust lawyer in a private firm, did a stint of public service (investigating corruption on the Illinois Supreme Court), and then was appointed to the federal bench.
You might expect, then, that Justice Stevens would take a conventional approach to the task of judging. But, in fact, his approach to one central aspect of that task—interpreting the Constitution—is strikingly unorthodox. In ways that are sometimes admirable and sometimes disturbing, Stevens’s opinions in constitutional cases present a fundamental challenge to widely accepted legal norms and practices.
The nature of this challenge was put fully on display earlier this year when Stevens dissented from the Court’s determination that freedom of speech protects expenditures by corporations and unions during federal elections. This decision, titled Citizens United v. Federal Election Commission, was, of course, the subject of President Obama’s critical remarks in front of the justices during his State of the Union address.
Stevens’s dissent in Citizens United is extraordinary. Fully 90 pages long, it attacks virtually every aspect of the majority opinion. It is detailed, intellectually ambitious, and alternately careful and passionate. It is also radical in its implications.
Consider, for example, Justice Stevens’s treatment of historical evidence about whether the framers intended the Free Speech Clause to protect corporations. Stevens acknowledges that his research has not identified any statements “from the founding era showing that corporations were understood to be excluded from the First Amendment’s . . . guarantee.” He then notes that “Justice Scalia adduces no statements to suggest the contrary proposition.” He concludes that “we cannot be certain how a law [restricting corporate speech] meshes with the original meaning of the First Amendment.”
It is not novel for a judge to decide that history does not resolve a particular constitutional argument. But Stevens makes a much broader point. Taking aim at Scalia’s basic interpretive philosophy, Stevens questions whether an “impartial judge’s application of [historical materials] is likely to yield more determinate answers . . . than his or her views about sound policy.”
Thus, Stevens is unabashedly proposing that a judge’s beliefs about “sound policy” provide as much constraint on judges’ discretion as does evidence about what the words in the Constitution were intended to mean. This turns normal assumptions upside down. Usually it is thought that a judge’s opinions about policy constitute the discretion that needs to be constrained by legal standards like original meaning.
If policy judgments are understood not as discretionary determinations but as constraints on judicial discretion, such judgments must have the authority of law. Stevens seems to think so. He even suggests that a judge’s views about sound policy should be at least as “decisive” in determining constitutional meaning as evidence about the Founders’ intentions.
Cynics and realists often claim that the imposition of the justices’ policy preferences is what is really going on in constitutional cases. But it is unusual to see this possibility so candidly embraced by a member of the Court. Various opinions of Justice Stevens, however, have long pointed in this direction. He is known for dispensing with established legal doctrines and basing his decisions on his own “balance” of the competing interests at stake in the controversy.
If opinions about “sound policy” (or the appropriate balance of interests) should decide constitutional cases, the American practice of relying primarily on courts to interpret the Constitution is called into question. After all, political leaders and the public in general are as entitled to their views on matters of policy as are the justices.
In Citizens United, Stevens does not flinch from this logic. His dissent is largely based on the argument that the Court should defer to Congress on the wisdom of regulating corporate speech. He depicts the statute under review as “an earnest effort to facilitate First Amendment values and safeguard the legitimacy of our political system.” And, quoting from one of his earlier opinions, Stevens asserts, “Congress surely has both wisdom and experience in these matters that is far superior to ours.”