Justice John Paul Stevens, Originalist

Article excerpt

ABSTRACT-Commentators, including the author of a recent book on the Supreme Court, often attempt to give each Justice a methodological label, such as "practitioner of judicial restraint," "legal realist," "pragmatist," or "originalist." This Essay first demonstrates that none of the first three labels applies without fail to Justice John Paul Stevens; consequently, it explores the extent to which Justice Stevens's jurisprudence paid heed to the fourth method, "originalism." It looks in particular at Justice Stevens's opinions in recent cases involving firearms, national security, and capital punishment. Somewhat at odds with conventional wisdom, the Essay reveals Justice Stevens as a kind of originalist-as a Justice duty-bound to identify and enforce principles, such as liberty and fairness, that the Framers embedded in the Constitution. To do so, Justice Stevens has practiced a fifth methodology, one that synthesizes many sources and interpretive techniques in an effort to reach a decision that serves a contemporary understanding of justice.

INTRODUCTION

Much attention has been paid to a four-in-one judicial biography with a catchy name, Scorpions.1 As promised by its subtitle, The Battles and Triumphs of FDR's Great Supreme Court Justices, the book focuses on rivalries among its subjects: Justices Hugo Black, Felix Frankfurter, William O. Douglas, and Robert H. Jackson. Retold, for example, is the near mutiny that ensued when Justice Jackson, on leave to serve as Chief Prosecutor in a Nuremberg trial that other Justices condemned, pressed in vain to become the Chief Justice of the United States. Upon such familiar fabric, the author of Scorpions, Harvard Law Professor Noah Feldman, embroiders lesser known anecdotes: for instance, the curious fact that another Nuremberg veteran, secretary Elsie Douglas, was the sole witness to the terminal attacks that felled both Justice Jackson and Justice Frankfurter.

Scorpions provides an elliptical frame of reference for discussing the topic of this Essay, Justice John Paul Stevens's methods of interpretation. This is because of two omissions, one obvious and one less so. Glaring is Feldman's decision to omit much mention at all of the other four men whom President Franklin D. Roosevelt put on the U.S. Supreme Court- among them Justice Wiley B. Rutledge, Jr., an early and influential mentor to Stevens.2 The second omission pertains to Feldman's decision to confine the discussion of legal philosophies largely to his subjects' lifetimes. Scarcely explored are linkages between the intellectual struggles of midtwentieth- century Justices and those of their twenty-first-century successors-including Justice Stevens and a colleague with whom he frequently sparred, Justice Antonin Scalia.3 Given their relevance to the understanding of Justice Stevens's methods of interpretation, both Scorpions omissions will be discussed in turn.

With regard to the first and most obvious of these ellipses: A couple of FDR Justices seem particularly ill served by relegation to the ranks of the "not great." One is Justice Frank Murphy.4 Even ignoring this Michigander's long career of public service before joining the bench, his nine years on the Court merit respect. In dozens of opinions, Justice Murphy spoke out for Americans disadvantaged by governmental action, and he did so with an empathy alien to the irascible Justice Douglas, Feldman's preferred champion of an expansive rights doctrine.5 Consider Korematsu v. United States, the 1944 case involving a native-born American of Japanese heritage who had suffered criminal conviction for defying government-mandated exclusion.6 Justice Murphy refused to defer to a military order that, as he saw it, "falls into the ugly abyss of racism."7 That refusal ran counter to the positions of all but two other Justices and to the vast weight of public opinion in that time of World War II.8 Yet today Justice Murphy's short dissent bears marks of candor and greatness lacking in Justice Black's majority opinion (which Justice Douglas joined), in Justice Frankfurter's concurrence, and even in Justice Jackson's dissent. …