Justice Weighs Desire
v. Duty (Duty Prevails)
By LINDA GREENHOUSE,
NYTimes on the Web, August 24, 2005
WASHINGTON -- It is not every
day that a Supreme Court justice calls his own decisions unwise. But with
unusual candor, Justice John Paul Stevens did that last week in a speech in
which he explored the gap that sometimes lies between a judge's desire and duty.
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Aynsley Floyd/Associated Press
Justice
John Paul Stevens at an American Bar Association meeting this month
in Chicago, where he was critical of the death penalty. |
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Addressing a bar association meeting
in Las Vegas, Justice Stevens dissected several of the recent term's decisions,
including his own majority opinions in two of the term's most prominent cases.
The outcomes were "unwise," he said, but "in each I was convinced that the law
compelled a result that I would have opposed if I were a legislator."
In one, the eminent domain case that became the term's most controversial
decision, he said that his majority opinion that upheld the government's
"taking" of private homes for a commercial development in New London, Conn.,
brought about a result "entirely divorced from my judgment concerning the wisdom
of the program" that was under constitutional attack.
His own view, Justice Stevens told the Clark County Bar Association, was 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." But he
said that the planned development fit the definition of "public use" that, in
his view, the Constitution permitted for the exercise of eminent domain.
Justice Stevens said he also regretted having to rule in favor of the federal
government's ability to enforce its narcotics laws and thus trump California's
medical marijuana initiative. "I have no hesitation in telling you that I
agree with the policy choice made by the millions of California voters," he
said. But given the broader stakes for the power of Congress to regulate
commerce, he added, "our duty to uphold the application of the federal statute
was pellucidly clear."
The court's press office made the text of his speech available here.
While the substance of his remarks was interesting, so was the timing. The
85-year-old Justice Stevens, who will observe his 30th anniversary on the court
this fall, is a savvy observer of the political landscape. It certainly
did not escape his notice that Supreme Court confirmation hearings were looming
and that a microscopic examination of the views of the nominee, Judge John G.
Roberts Jr., was under way.
Perhaps Justice Stevens intended a gentle reminder that no matter what views
Judge Roberts held as a young lawyer in the Reagan White House, the real
question was one that only the nominee could answer: not what views he
holds today, but the impact he would permit those views to have on his work as a
Supreme Court justice.
While Justice Stevens is the only member of the court to have addressed the
issue in a speech, others have used their written opinions to acknowledge the
conflict between a judge's policy preferences and decisions the judge may feel
forced to render because of legal precedent or judicial philosophy.
In March, for example, Justice Sandra Day O'Connor, whom Judge Roberts would
succeed, dissented from the court's opinion that declared unconstitutional the
execution of those who commit capital murder before the age of 18.
"Were my office that of a legislator, rather than a judge, then I, too, would be
inclined to support legislation setting a minimum age of 18," Justice O'Connor
wrote in her dissenting opinion in Roper v. Simmons in the course of explaining
why, in her view, the Constitution did not support that outcome.
Justice Anthony M. Kennedy, in providing a fifth vote for the court's 1989
decision that burning an American flag as a political protest is protected by
the First Amendment, noted that the decision "exacts its personal toll."
In his concurring opinion in the case, Texas v. Johnson, Justice Kennedy wrote:
"The hard fact is that sometimes we must make decisions we do not like. We
make them because they are right, right in the sense that the law and the
Constitution, as we see them, compel the result. And so great is our
commitment to the process that, except in the rare case, we do not pause to
express distaste for the result, perhaps for fear of undermining a valued
principle that dictates the decision."
For a justice on the speaking circuit, Justice Stevens gives unusually good
value. Rather than retreating to the safety of historical anecdotes or
constitutional platitudes, as some others do, he often talks about what is
actually on his mind. This month, he went to the American Bar
Association's annual meeting in his home city, Chicago, and offered some pointed
criticism of the death penalty.
Sometimes, of course, justices and other judges express themselves at their
peril, as Justice Antonin Scalia learned after criticizing an appeals court
decision that barred the recitation of the Pledge of Allegiance in public school
classrooms. He was obliged to recuse himself a few months later when the
case reached the Supreme Court.
On the other hand, Justice Scalia's more abstract discussion of his
jurisprudence, in a book titled "A Matter of Interpretation," has proved a
steady seller since its publication in 1997.
Next month, his colleague and occasional debating partner, Justice Stephen G.
Breyer, will offer his own very different views of constitutional interpretation
in a new book titled "Active Liberty: Interpreting Our Democratic
Constitution."
Justice Breyer's book is based on the Tanner Lectures on Human Values, which he
delivered last year at Harvard. Justice Scalia's book was based on his
lectures in the same series, which he delivered at Princeton in 1995.
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