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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Thursday, February 28, 2013

"Justice Stevens Tries to Rehabilitate His Unpopular Record"

Reason is a libertarian leaning publication and from time to time I read stuff there that is of interest and value. SCOTUSBlog flags an article entitled "Justice Stevens Tries to Rehabilitate His Unpopular Record."  Not being aware that he had one -- unless we are talking about various cases that one or the other side didn't like, but isn't "his" specifically since they tend to be joined by other justices (not really going to defend his flag burning dissents though) -- this caught my eye. 

The SCOTUS website has a tab for speeches and basically he dominates with a few from others such as Justice Ginsburg.  Two things immediately come to mind before even reading the piece -- (1) The guy is over 90, so come on, give him a break (2)  He always liked to talk and/or make his personal opinions known, noting in fact that on principle he thought it important to make his own views public record.  So, defending unpopular opinions is not what first comes to mind when I notice he is going around a lot, giving speeches and all.  The speeches are on various subjects as well though it makes sense, especially on guns, that he talk about a few noteworthy ones that involve controversial subjects.

But, let's check out the article, since hey, reams of stuff has been written about Stevens (a couple hundred pages of a law review, e.g., on his jurisprudence) since his retirement, so why not more, covering a somewhat different perspective at that.  That's fine.  Won't necessarily be right, mind you, but that's fine.  For instance, contra a linked piece, don't think it undignified for him to continue to do what he did when he was on the Court, often by separate concurring opinions just for that purpose (the comparison to presidents is inapt on that front), namely, dispute Scalia's or whomever's views on the merits.  Scalia probably likes it.

The article, with nice use of ellipses, early on notes:
In the 1937 ruling which voided the liberty of contract doctrine, West Coast Hotel v. Parish, Chief Justice Charles Evans Hughes declared that because “the Constitution does not speak of freedom of contract...the legislature is entitled to its judgment.” 

In other words, according to West Coast Hotel, if the Supreme Court protects an unenumerated economic right, it is engaging in an inappropriate form of conservative (or libertarian) judicial activism.
The two things connected here are separated in the actual opinion by seven pages of analysis!  The first part in context includes this:
In each case, the violation alleged by those attacking minimum wage regulation for women is deprivation of freedom of contract. What is this freedom? The Constitution does not speak of freedom of contract. It speaks of liberty and prohibits the deprivation of liberty without due process of law. In prohibiting that deprivation, the Constitution does not recognize an absolute and uncontrollable liberty. Liberty in each of its phases has its history and connotation. But the liberty safeguarded is liberty in a social organization which requires the protection of law against the evils which menace the health, safety, morals and welfare of the people. Liberty under the Constitution is thus necessarily subject to the restraints of due process, and regulation which is reasonable in relation to its subject and is adopted in the interests of the community is due process.
So, the overall argument is that "freedom of contract" specifically is not addressed, but a more open-ended protection of "liberty."  Is it "engaging in an inappropriate form of conservative (or libertarian) judicial activism" to  protect the unenumerated economic right in question?  Not quite. It means that ultimately the Supreme Court is protecting "liberty" and that substantive due process leaves open more discretion in such cases -- and not just those "economic" in nature at that, when the law (in a constitional sense) is not "arbitrary or capricious."  The specific law in question was deemed appropriate but any law?  Another question.  It was not really, contra the Ninth Amendment, a disparagement of unenumerated rights, but putting the "liberty" at issue in a broader context.  Something that was arguably done even for enumerated liberties in early 20th Century. 

And, Justice Stevens has protected economic rights, including in an early separate opinion regarding the type of relatives a person can have in her home.  After all, the Due Process Clause includes the term "property," and repeatedly the Supreme Court as a whole (including in the Heller gun case, if there as an "extra plus" sort of way) noted that the home in particular warrants special protection here.  Economic and non-economic rights are also often hard to cleanly split.  For instance, the right to buy, in public places, contraceptives. The speech does support giving legislatures more discretion to set economic policy -- economic policy as a whole arguably has a "public" nature that certain more "private" matters might not [this is ultimately a matter of constitutional theory and there was a shift in the 1930s there]  -- but only up to a point.

Anyway, the article notes that the Kelo case (the specific issue at hand), however, dealt with an enumerated provision, one incorporated by the Fourteenth Amendment. Not noted, but I will note it, Stevens is atypical in arguing that incorporation should not take the BOR and fully apply them to the states, appealing to Justice Harlan. Stevens argued that in McDonald v. Chicago, a justice noting in oral argument that perhaps he might want to take Harlan's views on other Warren Court rulings (such as his dissent in Miranda?) and it does have certain negative implications.  Implications he didn't really fully address, especially since other than certain aspects of jury rights and obscenity,* the USSC has not in recent years generally accepted the principle. 

But, the speech's point is that the Takings Clause, in both cases, literally is rather narrow.  It does not say that the government can only take property for public use ... it literally only says that when it does -- and only that is addressed (as if perhaps public use arguably might not justify payment since the person is getting value or has some duty or something) -- that payment must be provided.  Stevens then notes that any greater principle is ultimately a matter of substantive due process.  The same held true when applying limits to property to the states too at the end of the 19th Century, the first time a provision was "incorporated."

So, when Stevens says (while noting he was wary of the specific policy at issue) he believes that the legislature should have broad power to regulate property in this context, this is what he has in mind.  He does not think that even here that the legislature has unlimited discretion, e.g., providing a solo dissent against Prop 13.  I think Kelo was dubious as applied to private homes (he cites an article by Prof. Amar on the point), but his overall argument has bite.  The provision is not a grant of power.  It is a specific limitation on such a grant though the overall implication that only "public" use is allowed is a reasonable penumbra. There is a certain limited value to this -- the government overall should always act in "public," whatever it might do.  But, the concept seems valid.

So, the concern about Stevens' respect for constitutional liberty is a tad overblown.  I also think it is a matter of not actually reading the text that closely, akin to the selective citation of Parish.  The problem is not novel.  This blog post is ultimately using the specific example as a platform to make a wider point.  Still, it's pretty confused.  Anyway, back to the title, which I realize is often added by editors. What "unpopular record," exactly?  Heck, take Kelo.  I know it is unpopular, if we take some of the public reaction, but it upheld something local legislatures, including in some pretty conservative and libertarian states (which very well could have applied stricter rules if they wished, as some later did), passed.  And, as Stevens noted, the argument was broad, applying to public lots too, not merely a private home. 

Keep up the good work Stevens. 

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* There are probably a few other things that can be cited here, but if anything Stevens is something atypical even in the limited cases involved. First, he generally rejected the obscenity exception to the 1A. Second, he repeatedly opposed taking cases to decide criminal justice matters when they basically could be decided by state courts, even when there was some federal constitutional hook.  The pledge case is basically deemed a way for the Supremes to punt, but for him personally, the avoidance mechanism. was on some basis fairly principled.