The Least Popular Dissent

The following is an essay for our thirty-day series on John Paul Stevens by Sonja R. West, a professor at the University of Georgia School of Law.  West clerked for Justice Stevens during the 1999 Supreme Court Term.

One day during my clerkship, Justice Stevens sat chatting with my co-clerks and me when somehow the conversation turned to Texas v. Johnson—the case upholding the constitutional right to burn the American flag in which Justice Stevens dissented.

“I suppose you all thought I was wrong in that case?” he half-asked and half-stated.  He then paused for several seconds as his eyes darted around the room.  My co-clerks and I nervously looked down and studied our hands.  The clock ticked.  No one said a word.  “Well,” he finally continued with a sigh, “I still think I was correct.”

Justice Stevens’ dissent in Texas v. Johnson is one of his most well-known opinions.  It is usually hailed as the emotional decision of a loyal former soldier whose military experience changed him forever.  Without any empirical data to back me up, I also believe it is likely true what Justice Stevens seemed to suspect in chambers that day—that his famous dissent enjoys surprisingly little support among his law clerks.

Yet as I have continually re-read and taught this case over the past ten years, I have started to see the dissent as revealing something more about Justice Stevens than simply his heartfelt patriotism.  The case is representative of his broader approach to constitutional interpretation—an approach that openly recognizes the fact that constitutional law is not black and white but rather many shades of grey.  His is a nuanced view that embraces the complexities of the task at hand.  And it rejects simpler, although appealing, arguments like the omnipresent threat of the slippery slope.  Texas v. Johnson illustrates this nuance well.  In that case, Justice Stevens explained that the flag is a unique symbol with a value that “cannot be measured,” and protecting it does not mean we must extend the same protection to every other political symbol.  The Constitution requires such distinctions, he reminds us, and judges are capable of making them.

Throughout Justice Stevens’ free speech cases, you can see this view at work.  He rejects absolutism and does so without fear that it will push us into chaos.  The result is a strong protection of the freedom of speech along with an acknowledgement that sometimes there are valuable and intricate considerations on the other side.  Justice Stevens’ approach to equal protection is similarly characteristic.  He alone on the current Court rejects the tiers of scrutiny for different types of classifications.  He has declared them to be nothing more than “a method the Court has employed to explain decisions that actually apply a single standard in a reasonably consistent fashion.”  To Justice Stevens these tiers of scrutiny do not shield judges from making normative judgments, but only serve to disguise the judgments they necessarily must make in every case that comes before them. The Court can, indeed must, respect the multifaceted distinctions inherent in the law, and the sky does not fall when it does.

The question, of course, is when and how judges should draw such distinctions.  What Justice Stevens shows us is that they need not—should not—do so based on personal whims.  Rather, they do so by acknowledging the subtleties of the law.  Justice Stevens relies on the traditional tools of legal interpretation: text, history and precedent.  But he does so with an acceptance that these tools rarely point toward overly convenient, sometimes even absurd, bright-line rules.

Too often in our legal discourse, the acknowledgement of legal subtlety is conflated with judicial anarchy.  Justice Stevens certainly has been subjected to this criticism.  In a recent profile of Stevens in The New Yorker magazine, for example, several of his critics described him as a results-driven activist.  Justice Stevens “finds rights in the Constitution that no plausible reading could find there,” Robert Bork complained.   Frequently these criticisms invite a contrasting comparison to the Court’s conservative leader, Justice Scalia.  Whereas Stevens will pursue results he favors over the dictates of text and history, Federalist Society co-founder Stephen G. Calabresi declared, “Scalia sees the role of the judge as to read the text and apply it—period.”  Stevens’ approach, according to M. Edward Whelan III, head of the conservative Ethics and Public Policy Center, “is really just a license for a judge to reach whatever result he wants,” while “Scalia believes in rules.”

It is true that while Stevens has unapologetically taken on the complexities of interpreting the Constitution, Justice Scalia has had great success in exploiting the rhetorical power of “rules” and “textualism.”  When teaching constitutional law, one quickly learns that law students crave clear tests and rigid frameworks, and Justice Scalia’s opinions are appealing to them.  They are well-written, often entertaining, and make the convoluted appear so very simple. The Stevens opinions, meanwhile, tend to take more time to teach. How does Justice Stevens reach this conclusion?  How is he using the tools of legal craftsmanship?  How does he balance his use of those tools?  Does he do so consistently across cases, or is he inconsistent and outcome-driven?  If we peel away the pleasing rule-bound rhetoric is Justice Scalia really doing anything different in practice?

Rarely is a single class period enough to explore these thoughts, and a semester is just the beginning of the conversation.  For this particular student of Justice Stevens’ jurisprudence, some of his opinions, like Texas v. Johnson, appear to be taking a decade and counting to fully unpack.  But if Justice Stevens has taught me anything it is that those efforts that are the most difficult, complicated and nuanced are often also what are the most honest and ultimately rewarding.