Justice Stevens, Particularist
The following essay for our thirty-day series on John Paul Stevens is by Frederick Schauer, David and Mary Harrison Distinguished Professor of Law at the University of Virginia. Schauer’s research focuses on the First Amendment. His papers discussing Justice Stevens’ jurisprudence include “Justice Stevens and the Size of Constitutional Decisions,” Rutgers Law Journal (1995).
Although much of the commentary about constitutional law and about the Supreme Court focuses on substance and outcomes, issues of judicial style are perhaps just as important. But I refer here not to writing style. Rather, the question is one of an approach to constitutional decision-making. More specifically, at least in this context, I refer to the distinction between more and less particularist "“ and thus more or less rule-based "“ approaches to constitutional and Supreme Court decision-making. Under one approach, constitutional law is or should be largely about categories, where the importance of getting the right result for the aggregate of cases falling within the category is more important than focusing on the particular facts of particular cases or situations. And under another approach, constitutional law must be more particular or more narrow, emphasizing the factual dimensions of particular cases or particular issues rather than larger or more abstract categories.
In the context of this distinction, which in reality is a spectrum and not a dichotomy, it is clear that Justice Stevens, for better or for worse, is a committed particularist. He appears often to worry that larger categories obscure relevant facts in cases or situations, and he is frequently the Justice who stresses the particular dimension of a situation that too much (in his view) attention to a larger or more abstract category would obscure. Thus, to the extent that we can understand one aspect of doctrinal design as the question of size "“ whether doctrinal categories should be large or small "“ Justice Stevens with some consistency frequently comes out in favor of small.
This tendency towards particularism and smaller rather than larger categories on the part of Justice Stevens is nowhere more apparent than in his free speech opinions. In Young v. American Mini Theatres (1975), allowing the zoning of theaters showing sexually oriented but non-obscene films, he noted that "few of us would march our sons and daughters off to war to preserve the citizen's right to see "Specified Sexual Activities exhibited in the theaters of our choice." For Justice Stevens, the category of non-obscene speech should not be seen as one large undifferentiated one, but rather in terms of smaller categories allowing varying degrees of regulation, an approach that also supported his decision three years later in FCC v. Pacifica Foundation (1978), allowing non-criminal regulation on radio and television of "patently offensive words dealing with sex and excretion." For someone with particularist inclinations, treating sober political commentary and bawdy humor as the same (which is the prevailing First Amendment approach) is too coarse, and it is preferable to develop doctrine in a more fine-grained manner, recognizing in the doctrine the differences that exist in the pre-doctrinal world.
This same concern with developing finer First Amendment distinctions continued in Justice Stevens' later opinions. In Texas v. Johnson (1989), his dissent, which would have allowed Texas to prohibit flag desecration, relied on his belief that the question of flag desecration is "unique," and not just another example of offensive political commentary, which was the view of the majority and the view that justified invalidating the Texas law. In his concurring opinion in R.A.V. v. City of St. Paul (1992), Justice Stevens' opinion concurring in the judgment questioned the view that all content-based regulations should be viewed similarly, and two years later in City of Ladue v. Gilleo (1994), he again expressed the view that a blunt rule about content regulation was insensitive to the varieties of communication and the varieties of regulation. And in both Frisby v. Schultz (1988), dealing with residential picketing of an abortion provider, and Madsen v. Women's Health Center (1994), an abortion clinic picketing case, he reiterated the view that both the context of the speech (the extent to which it is intimidating, for example) and the nature of the regulation (injunctions as opposed to criminal prosecutions, for example) were highly relevant in determining which speech restrictions were permissible and which were not. Similarly, in campaign finance cases such as McConnell v. Federal Election Commission (2003) and Nixon v. Shrink Missouri Government PAC (2000), Justice Stevens has avoided categorical protection or categorical non-protection of campaign spending, choosing instead to look at the particular effects of particular restrictions.
It is not only in the First Amendment that these particularist themes emerge in the opinions of Justice Stevens. He has been a strong proponent of using Ashwander principles of constitutional avoidance to defer deciding constitutional questions, as in INS v. St. Cyr (2001), and in the same case he expressed a preference for imposing "clear statement" requirements as another way of reaching narrower and less constitutionally based results as opposed to direct confrontation with broader constitutional questions. In his dissent in the punitive damages case of Philip Morris v. Williams (2007), Justice Stevens was concerned to recognize a broader rather than narrower range of permissible justifications for the imposition of punitive damages. And in District Attorney's Office v. Osborne (2009), involving a postconviction claim regarding use of potentially exonerating DNA evidence, it was important for Justice Stevens that the range of arguments available to a defendant not be unduly limited by a premature, categorical, and unduly broad definition of what the due process clause did (or, in this case, did not) encompass.
In all of these cases, and in many others, and whether writing for the majority, or concurring, or dissenting, Justice Stevens has insistently sought results that enable more contextual determinations, that allow more facts to be considered, and that recognize finer but potentially relevant distinctions that coarser and larger categories might ignore. And in an era in which minimalism, context, empathy, and related case-specific virtues are often celebrated, it is easy to see the appeal of Justice Stevens' approach. Yet for all of its initial appeal, and for all of the virtues of wanting to take everything into account, such an approach is in at least some tension with other important judicial, legal, and constitutional values. As Justice Stevens' opinions in the "indecency" and flag desecration cases show, the strength of the First Amendment lies importantly not in what facts it takes into account, but what facts it ignores. If First Amendment doctrine were contextually sensitive to the moral value of the Nazis and the Klan, to the literary or artistic value of much of sexually explicit material, or to the actual harms done by racist, sexist, or reputation-damaging speech, the First Amendment would be very different from the First Amendment we have. And so too with many area of constitutional doctrine, including much of criminal procedure, where the protective strength of many doctrines lies precisely in its unwillingness to take account of the guilt of the defendant or the nature of the crimes he has committed. Throughout constitutional law, strong constitutional rules derive their strength from what they ignore, and from the way in which, in the service of longer-term or deeper values, they reach results different from what a fully contextual and case-specific analysis would produce. And thus although it is easy to criticize broad and blunt rules, a preference for narrower rules, more facts, and more context may present, over time, a more substantial threat to an essential feature of constitutional effectiveness.
As the Supreme Court's decisional output shrinks, from about 150 cases a term decided with full opinions two decades again to around 70 now, the importance of broader and clearer rules, even if at times they are blunt and crude, grows. The Court is not only a decider of controversies between the parties before it, but it is also an even more important provider of constitutional guidance to lower courts and to primary, especially governmental, actors. When constitutional rules become narrower and more context-dependent, and, perhaps even worse, when constitutional rule-making is deferred by various techniques of constitutional avoidance, the Court relinquishes the guidance function that may be far more important than its decisional function. On numerous occasions, Justice Stevens has written opinions in the majority, in concurrence, or in dissent, that are eloquent, persuasive, and substantively attractive. In this respect his reputation will be both enduring and well-deserved. But in many of those opinions he has shown a penchant for drawing fine distinctions and taking into account facts that important constitutional doctrines wisely ignore. At times this style has great virtues, but the legacy of this style, while perhaps as likely to be enduring, may be more of a mixed blessing.