Chevron deference should be replaced with a system that accords weight to both contemporaneous and customary interpretations.
Judicial biography is a very difficult genre. Most judges live extremely prudently, which is good for them, but tedious for the reader. Their work product consists of discrete decisions on many subjects written in a legal idiom and not easily summarized. As a result, few judicial biographies appeal to the general public.
Judicial autobiography raises the same problems. Thus, it is not a surprise that that no justice has ever written a full autobiography that includes an in-depth discussion of his years on the Court. Justice John Paul Stevens’ The Making of a Justice: My First Ninety Four Years is a first. But it should not encourage others. To be sure, he includes a few interesting stories. As a boy, he attended the 1932 World Series between the New York Yankees and Chicago Cubs and delightfully confirms that Babe Ruth hit a home run to the very part of the field to which had pointed. He has also spent enough time among the great and good to accumulate some amusing anecdotes. When he met John Paul II, the pope graciously suggested that the justice was John Paul the third. And Leonard Bernstein memorably described what it feels like to conduct crescendos, but sadly in a manner that cannot be repeated in this family-friendly website.
But the vast bulk of the book consists of Stevens’ account of the thirty-four years of cases he decided at the Supreme Court. These cases crowd out even the most important personal matters. Four years into his Court tenure, he was divorced and remarried—a sequence of events that does not even merit a mention. The cases are not presented thematically, but chronologically. And he devotes equal, endless attention to the factual details of both important and obscure decisions. No one other than a law professor would persist to the end of all the chapters, not even a law professor could do so with enjoyment.
But the most serious vice of this book has one related virtue: it captures the fatal flaw of Stevens’ jurisprudence. He believes that facts should generally decide cases, not rules or jurisprudential theory. He is quite candid about the source of this belief—the education he received at Northwestern, my own law school, from which he graduated with great distinction. He notes that “instead of organizing the subject studying cases involving one rule after another, the books [from which he was taught at Northwestern] included separate chapters for cases involving different types of fact patterns.” Thus, his education did not structure law through rules, like that of consideration in contracts, but factual areas, like contracts for goods and contracts for services. His legal universe was carved up into different things, not discrete doctrines.
And it turns out that his professors created his jurisprudential universe. On the Court, Stevens was moved by facts, not by rules, and certainly not by those embodied in the original meaning of the Constitution. For instance, in his opposition to most if not all impositions of the death penalty, Justice Stevens does not look to original meaning, but to the facts, such as those about its deterrent effects. He states “there remains no reliable statistical evidence that the capital punishment in fact deters particular defendants.” And his view that the burning the American flag can be made illegal despite his recognition that the First Amendment does protect symbolic speech generally depends on his conclusion that the interest in communicating a message by burning flags is minimal because few people burn them.
But these factual references are wholly inadequate to support his conclusions even on their own terms. For instance even if it is uncertain whether the death penalty deters crime, the relevant legal question raised by this fact is who should bear the risk of uncertainty. If it turns out the death penalty does not deter, some murderers will have been executed without the beneficial consequence of saving future lives. But if it turns out that it does deter, some innocent people will have been killed who would have otherwise been saved. And as for flag burning, it is the very decision to make it legal that has contributed to the infrequency of its occurrence. Once burning the flag has become a symbol of American freedom, it is no longer a transgressive act. Permitting flag burning had the happy factual consequence of many fewer flags burned.
When he does come to theory, Stevens is not at all persuasive in justifying his decisions. For instance, he criticizes Roe v. Wade for relying on the right to privacy, because, as he correctly notes, the Constitution does not even contain the word privacy. Instead, he says the right to abortion which he supported throughout his tenure should have been founded on the right to liberty in the due process clause. But he never gives any explanation of why or to what degree the due process clause should protect substantive rights. And worse he never shows why that liberty should not include the right to work for any wage one wants, but should include the right to abortion. These are indeed different fact patterns but facts themselves cannot by themselves generate different normative conclusions—for these, we need a theory. David Hume showed almost three centuries ago that one cannot derive an “ought” from an “is.” Perhaps Stevens thinks that judges are the correct decision makers for “personal” rights like abortion but not “economic rights,” but he offers no justification for this view either.
Despite the failure of Stevens as a memoirist and legal theorist, the book shows his substantial virtues as a person, like tolerance and respect for opposing views. He frequently praises those with whom he fundamentally disagrees. Clarence Thomas has a strong “work ethic” and “equally strong intellect.” He states clearly that Judge Robert Bork should have been confirmed, although he must recognize that a Justice Bork would have voted against many of the important results he favored.
And nothing became his Supreme Court career like the leaving of it. When he had trouble reading his dissent in Citizens United, other justices and his own clerks nevertheless told him he had done a fine job. He knew otherwise and felt it was his duty to resign by the end of the term.
In many ways, Stevens embodied both the qualities and blinds spots of one who came of age in Second World War. He possessed the devotion to duty that characterized his generation. But he also had an overconfidence that the consensus forged in World War II would carry on indefinitely. That consensus encouraged him to think that most everyone would regard the facts as he did, permitting him to believe that a jurisprudence of facts could substitute for a jurisprudence of principle.