Hindsight 20/10– Over the next few days, we will be reflecting on the past year in a series of posts. Josh begins with the Retiree of the Year:
Since 2005, Supreme Court Justices Rehnquist, O’Connor, Souter, and most recently, Stevens departed from their coveted positions on the bench. As a law student, I read a lot of legal opinions by justices of the Supreme Court and federal circuit courts. The judge’s name is generally listed before the text of the opinion and naturally, some judges excite me more than others. I know I’m going to get a well-written opinion with Justice Scalia, an intellectually stimulating economic analysis of some aspect of the law under the guise of an opinion with Seventh Circuit Judge Richard Posner, and a witty, brilliant analysis with Ninth Circuit Chief Judge Alex Kozinski.* Only a handful of other justices’ names alone get me excited for an opinion: Of the Court’s four most recent retirees, Justice Stevens is the only one who fits into this class.
*He also showed his wit on The Dating Game (second contestant).
Part of this, of course, is that Stevens has had many opportunities to author opinions on significant legal issues. Nearing 90, John Paul Stevens authored the dissents in District of Columbia v Heller—arguing that the 2nd Amendment is intended as a collective right in the context of state militias—and Citizens United v FEC—maintaining that the 2002 Bipartisan Campaign Reform Act’s electioneering communications provision was facially constitutional. Both Justice Scalia’s majority opinion in Heller and Justice Kennedy’s majority opinion in Citizens United are rigorously written and incredibly persuasive upon a first read. But—whether or not you agree with the outcome—Stevens forces you to reconsider whatever premises you were accepting that would cause you to side with the majority in both cases.
Despite his advanced age, Stevens’ legal and analytical acumen was at a level that most judges could never dream of nearing. Stevens’ mark in other areas of the law is unquestionable: He authored the majority opinion in Chevron, the most influential case in administrative law. Given that the vast majority of regulation in the United States is administrative, Stevens’ introduction of the Chevron deference standard changed the nature of the regulatory state. His controversial Gonzales v Raich opinion added a crucial wrinkle to Commerce Clause doctrine and has shaped the legal reasoning in the briefs and opinions challenging the individual mandate in the latest health care legislation.
What will be missed more than his substantive legal opinions, though, is his bow tie methodology. Likely at least partially motivated by his abstention from ideology,* Stevens pursued a fact-intensive approach. While many appellate judges tend to find the facts as merely a means towards reaching and resolving abstract legal questions, Stevens viewed them as much more important. He shifted his view on the death penalty, at least in part, because of empirical studies using DNA testing and demonstrations of jury bias. Some have described his approach as particularist, disfavoring abstract doctrinal categories that de-emphasize the relevant facts in particular cases. It is almost certainly undesirable for every justice on the Court to have this particularist outlook; sometimes—even often—abstract doctrine grounded in constitutional first principles is valuable.** But occasionally there comes the case that’s not suited for such abstraction and, at those times, Stevens’ presence is going to be sorely missed.
*With perhaps the exception of Justice Kennedy, Justice Stevens was the least ideological member of the Supreme Court in a time when the Court has been increasingly criticized for its ideological polarization. In an interview with Jeffrey Rosen, Stevens calls himself a “judicial conservative” but refuses to link that to any particular political ideology that he may have.
** When the Supreme Court is only hearing 80-something cases a year and you accept that it’s valuable to have consistent applications of federal law across the country, an abstract legal standard that can be applied across particular fact situations is beneficial.
Stevens authored the first draft of all of his opinions, contrary to the majority of justices. Of course, his clerks still edited the opinions after his draft. The fascinating study cited in our Monday Medley a few weeks ago found that Stevens’ opinions showed less variability than most of his fellow justices—an indication that his clerks were less responsible for his opinions than he was.* It seems that writing an initial draft would do more to shape an opinion even if the language were later altered after by clerks, but at the very least, Stevens was in the top half in terms of his contribution to his own opinions.
* Interestingly, Stevens’ opinions showed less variability than those of Ginsburg, Thomas, Kennedy, O’Connor, and Souter, but more variability than Roberts, Alito, and Scalia. And, conservative/libertarian-minded Judges Posner and Easterbrook formed the whole basis of the metric since they are known to write their own opinions. So, interestingly, allegedly liberal judges seem to rely on clerks more at least among prestigious federal judges. Uninterestingly, I do not have a hypothesis as to why this is the case.
Because Stevens wrote the first draft of his opinions, his clerks had more time to evaluate certiorari petitions (which determine whether particular cases get heard by the Supreme Court); before Alito opted out of the cert pool* in 2008, Stevens was the only justice to opt out and have his clerks write distinct memoranda to determine whether the Court should hear particular cases. Given that only four justices need to approve for cert to be granted, the effect of a single justice opting out is huge—so long as that justice’s clerks differ, on average, from whoever is writing the memorandum for the cert pool. With justices having different legal approaches and cert philosophies, it seems that the efficiency benefits of a pool may be outweighed by the losses of truly independent voting for cert by each justice. One legal journalist has suggested that the cert pool has contributed to the court’s declining caseload since its culture suggests granting cert only in obvious cases. Assuming Justices Kagan or Sotomayor don’t leave the cert pool, Stevens’ retirement could contribute to a permanent decline in the Court’s caseload, inevitably changing the type of cases that the Court hears.
*On the Supreme Court, the cert pool consists of multiple justices and their clerks dividing up cert petitions. If a justice opts out of the cert pool, then his clerks evaluate each opinion specifically for him, rather than for the group of justices in the cert pool.
When Stevens retired this year, the Court not only lost a great jurist but it also lost methodological diversity. While diversity of just about everything else (race, gender, religion, New York nativity, law school pedigree, political ideology) is discussed ad nauseam, methodological diversity is often neglected (absent the often empty public debate over originalism versus living constitutionalism, which seems to often be simply a proxy for ideology). Did President Obama even consider replacing Stevens with another particularist justice with a fact-intensive approach to the law? It’s unlikely. Although it’s difficult to tell how much the ideological composition of the Court has changed given Justice Kagan’s lack of record and Justice Stevens’ lack of ideology, we do know already that, in 2010, the methodological composition of the Court changed. And that may not be a good thing.