The Right Coast

August 26, 2005
Justice Stevens' Responsibility: A Response to Ethan Leib
By Mike Rappaport

Ethan Leib has an interesting response to my post on Justice Stevens. In my post, I had criticized Justice Stevens’ claim that he was required by the law to decide the Kelo case. While he may have wished to decide that particular case differently, Stevens still follows a constitutional interpretive approach that allows him to interpret constitutional provisions in a way that he regards as desirable. Justice Stevens believes that the Constitution should allow the government to have its way as to economic matters, which led him to the result in Kelo. While Stevens may have wished the result to be different in Kelo, he still bears significant responsibility for the decision: it follows from his choices as to what content to give to the Constitution. By contrast, an originalist judge cannot decide what he wants the content of the constitutional provision to be. He simply must accept the content enacted by the Framers.

Ethan believes that I have overstated the constraint on originalist judges as compared to that on Justice Stevens. Both the originalist and Justice Stevens choose their interpretive approaches and they must live with the results.

I am not sure that it is correct to say that the originalist chooses his interpretive approach in the same way that a judge who reads his policies into the Constitution does. But lets assume it is true for purposes of argument. Still, Ethan ignores an important difference. The originalist makes a single choice – be an originalist – and then is bound by that choice for all decisions. Besides the one choice, the decisions are made by the Framers. By contrast, a policy oriented Justice like Stevens gets to decide the content of the constitutional provisions. He is making numerous decisions for each constitutional clause and for the constitution overall.

Whatever one thinks of the desirability of these two approaches, I think it is clear that there is an enormous difference in the degree to which one finds the originalist judge responsible for his decisions as compared to the degree to which one finds the policy oriented judge. The policy oriented judge simply has more choices. Justice Stevens can’t have it both ways. Or as my mother loves to put it, you can’t have the name without the game.