The Right Coast

August 25, 2005
Justice Stevens, Judicial Restraint, and Spin
By Mike Rappaport

An interesting piece in the New York Times covering a recent speech by Justice Stevens. Stevens claims that in two cases, his own majority opinion upheld unwise results, but "in each I was convinced that the law compelled a result that I would have opposed if I were a legislator." The two cases are Kelo, which allowed eminent domain to be used to transfer property to a private entity and Raich, which upheld the federal government's power to regulate medical marijuana. I wonder whether Stevens' criticism of the result in Kelo in part reflects his desire to respond to and mitigate the public outcry against Kelo. Stevens is saying, sorry, its not my decision, the law compelled the result.

Justice Stevens? Give me a break. The Justice who wrote separately in the partial birth abortion case to say that a reason to oppose this prohibition was that it was intended to undermine support for abortion?

In analying Stevens' comments, we can distinguish several ways in which a judge can behave:

-- First, the judge can decide a case as he would if he were a legislator.

-- Second, the judge can decide a case in accordance with the content of a constitutional provision (or of several interrelated constitutional provisions) that he believes would be desirable.

-- Third, the judge can decide based on the content of a constitutional provision that he believes the Framers gave to it.

While Stevens is portraying himself as restrained by the law, his claims about himself seem to fall under the first and the second approaches. It is only judges who follow the third approach that are significantly restrained by the law. Judges who follow the first and second approaches can still read their own policy into the constitutional provisions and therefore can claim to be deciding based on the law's values, rather than their own, only in a limited sense.

In the case of Raich involving medical marijuana, Stevens is saying he would vote to allow the use of such marijuana. That just means he is not following his desires in the first sense. In the case of Kelo, it is a little harder to interpret Stevens. Since Stevens claims to believe that "the free play of market forces is more likely to produce acceptable results in the long run than the best-intentioned plans of public officials," one might think he feels bound by the Framers' meaning. But I don't think so. Instead, I think he believes that what he regards as the most desirable reading of constitutional clauses generally is to allow the government to make economic decisions without constitutional restraint and therefore he is forced to construe the public use provision of the clause more leniently than he might otherwise desire. If I am right, then Stevens is restraining himself only in the second sense -- he is deciding the case differently than he would vote for as a legislator, but he is still choosing to give the constitutional provisions the meaning he believes are desirable. He cannot claim to be bound by directions that he would not choose.

While the Times is happy to portray Stevens as restraining himself, I think Stevens is vulnerable. My guess is that he understands that he is open to attack for Kelo and now wants to deflect responsibility.

Update: I have added a couple of sentences to the above post to make it clearer.