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Is Justice Stevens a Judicial Conservative?:
In a recent interview with Jan Crawford Greenburg, Justice Stevens stated that he sees himself as a "moderate conservative" Justice:
Although Stevens is a maverick thinker who has proven to be surprisingly liberal and has kept the court from moving further to the right, today the justice said he stills sees himself as a conservative.

"I don't really think I've changed. I think there have been a lot of changes in the court." said the 86 year old Justice. "I can see myself as a conservative, to tell you the truth, a judicial conservative."
  My guess is that this will draw strong reactions from both sides of the political spectrum. I gather some conservatives will insist it is more proof that Stevens is out to lunch, and I gather some liberals will insist it is more proof that today's 'conservatives' are really lunatic neanderthals.

  I wonder, though, whether Stevens' self-perception is just a reflection of the what the phrase "judicial conservative" used to mean. Oversimplifying things a lot, in the 1960s and 1970s judicial liberals were the folks who favored the courts bringing about dramatic changes to the foundations of American law. In contrast, judicial conservatives were the folks who favored resisting those changes. The Justices who embraced some dramatic changes but rejected others were the moderate conservatives.

  I don't know whether Justice Stevens has this history in mind when he labels himself a "moderate conservative." As far as I know, he was not asked to define what he meant by the label. But if he has this somewat outdated framework in mind, then it doesn't seem particularly inaccurate to me.

  For my thoughts on the modern usage of such terms, see my earlier post, How Can You Tell if A Justice is 'Liberal' or 'Conservative'?

  Thanks to How Appealing for the link.
jgshapiro (mail):
He is an incrementalist, which is judicially conservative if the opposite is a judicial activist. He is not a political conservative, where the opposite would be seen as politically liberal, but more likely a political moderate.

The trouble with the word conservative when used to describe judges is that it is used in both contexts, anti-activist and anti-liberal. It could mean either, or both.
1.2.2007 7:23pm
Steve:
I see Justice Stevens as a good match for Gerald Ford, the President who appointed him. Today, "liberal" and "conservative" seem to have become little more than buzzwords, and silly issues like gay marriage end up as the litmus test. Stevens is pretty much correct that he hasn't changed much.
1.2.2007 7:29pm
Virginia:
Stevens is a conservative in that he is conserving the liberalism of the Warren and Burger Courts.
1.2.2007 7:31pm
Mark Field (mail):

Oversimplifying things a lot, in the 1960s and 1970s judicial liberals were the folks who favored the courts bringing about dramatic changes to the foundations of American law.


I'm generally skeptical of trying to apply labels to groups of people, but I don't think this definition is very accurate. Using it, I'd be forced to say that today's originalists are therefore "liberal", a label that seems odd, to say the least.

If you asked me to point to what the "liberals" had in common, I'd say commitments to federal power over the economy and certain of the Bill of Rights, and a general, but not universal, attitude of legal realism. "Conservatives", in contrast, tended to favor state power and legal formalism. I think this works reasonably well from about 1940 to about 1985, but even then it wouldn't apply to everyone.
1.2.2007 7:59pm
Tom Holsinger (mail):
Brownian motion is not political.
1.2.2007 9:13pm
wooga:
I seem to recall a number of cases, particularly in the civil liberties context, where Stevens took the 'judicial conservative' position of "the legislature has passed a very bad law, and this party is suffering as a result, but that's the legislatures job to fix the law, not mine"

I guess if you look for cases where Stevens and Thomas were on one side and O'Connor was on the other - that's probably what has stuck in Stevens' mind as defining his judicial conservatism, and not the whole host of cases where he and Souter have been holding hands.
1.2.2007 9:21pm
abean:
I find it relatively easier to discuss these things using the European sense of the words. I.e., I'll start out by saying liberal, in the european sense; conservative, in the european sense.

What does this mean:
a conservative, in the european sense, is a traditionalist usually with patriotic sentiments but not strong enough to be classified as far-right(which in the european sense means virulently nationalistic/racist)

a liberal, in the european sense is either "liberal and leftist" or "liberal but not leftist". The former tends to support socialist economic policies and believe more are needed. The latter is more like what we call libertarian. They oppose socialism and argue that much less state intervention is needed.

A european liberal wants to change the status quo. A conservative wants to preserve the existing institutions.

So Mark, I think the magic you need is "and leftist" and "but not leftist"
1.2.2007 9:24pm
Paul Smith (mail):
It might be helpful to think of the liberal-conservative question as having two axes. On the "X" (procedural) axis you could plot the judge's willingness or reluctance to change the law (or, if you prefer, his/her adherence to textual sources versus his/her own unrestarined conceptions of fairness). On the "Y" (substantive) axis you could plot the outcome of the judge's decisions when viewed from a policy perspective.
1.2.2007 10:54pm
anonVCfan:
The Y axis is for the New York Times, PFAW, and assorted mouth-breathers who don't know what judges do.
1.2.2007 11:13pm
David P. Lyons (mail):
abean: great clarification. I fail to see how Stevens can describe himself as "conservative" in any meaningful way. His own tendency toward judicial overreach and his hostility toward traditional religion, strike me as in no meaningful way "conservative," although they may be "liberal but not leftist." Even there, however, I would like to think that there are liberals, leftist or not, who appreciate the kind of consistency and restraint upon which the rule of law depends, and toward which Stevens only has seemed inclined to give the back of his hand.
1.3.2007 1:00am
SP:
He's so conservative, which is why he'll be up on the bench in adult diapers before he lets a Republican appoint his replacement.
1.3.2007 4:55am
godfodder (mail):
SP:
My thought exactly! The man is 86 years old, and he still won't retire! What in heavens name is wrong with him? Plus, there is the fact that almost everyone experiences significant intellectual decline at those advanced ages. We can't find someone more suited the job? How about some term limits here?

Just curious, but what is to prevent a SC justice from staying on the bence after they are no longer capable of serving? Is there a procedure for removing someone from the SC if they are medically disabled? Or is it always done by the power of... suggestion?
1.3.2007 5:33am
Matt Barr (mail) (www):
My opinion of Mr. Justice Stevens was informed most directly by his dissent in Solid Waste Agency of Northern Cook County v. Army Corps of Engineers, which appears to me to be saying that Congress wants clean water, and clean water is good, so we (the Court) should reach whatever result protects or encourages clean water. That may be "conservative" in the "conservation" sense, but in almost no other.
1.3.2007 6:49am
markm (mail):
abean:

A european liberal wants to change the status quo. A conservative wants to preserve the existing institutions.

But institutions have already been changed.
1.3.2007 6:51am
Anderson (mail) (www):
Just curious, but what is to prevent a SC justice from staying on the bence after they are no longer capable of serving?

That's what Douglas did. The implied threat is that the other justices would go public with how gaga you were, and the Congress could then remove you. I'm sure there's a technical issue as to the availability of impeachment in such a case, but I doubt that would stop anyone.

Douglas retired before anyone had to "go nuclear."

--Btw, no surprise that commenters who identify "conservative" w/ "favors my policy preferences" are puzzled by Stevens. Anyone recall which way he voted in Texas v. Johnson, the flag-burning case?
1.3.2007 9:04am
Mark Field (mail):

A european liberal wants to change the status quo. A conservative wants to preserve the existing institutions.


This seems to beg the question I raised earlier: how do we characterize someone who wants to change the status quo back to what s/he believes it once was?

"Liberal" seems the wrong word for that. We used to use "reactionary", but that has a pejorative edge to it that limits its use.
1.3.2007 11:23am
nunzio:
Maybe to Stevens, upholding most Congressional legislation is moderate conservative. He also seems to side with states over federal agencies.

Interestingly, he was in dissent in Kyllo and in Texas v. Johnson.

He also was in the majority in Oregon v. Smith and City of Boerne, which is consistent with his establishment clause views.

As for his age, the guy still seems pretty sharp.
1.3.2007 12:12pm
Realist Liberal (mail):

A european liberal wants to change the status quo. A conservative wants to preserve the existing institutions.



This seems to beg the question I raised earlier: how do we characterize someone who wants to change the status quo back to what s/he believes it once was?

"Liberal" seems the wrong word for that. We used to use "reactionary", but that has a pejorative edge to it that limits its use.


Exactly, most people would consider Thomas conservative but if you use it in this sense then isn't he actually liberal? He wants to eliminate nearly a century's worth of Establishment Clause and Commerce Clause jurisprudence (whether or not he is right is a different issue the fact is that he admits that this is the case).
1.3.2007 12:15pm
Hans Bader (mail):
Justice Stevens' description of himself as a moderate conservative is quite funny and entertaining. It's as if Justice Scalia called himself a moderate liberal.

If Scalia did that, people would laugh.

In truth, Scalia's claim to be a moderate liberal would be on stronger ground than Stevens' claim to be a moderate conservative.

Scalia has often (rightly) voted to strike down legislation favored by social conservatives, like the Communications Decency Act and the flag-burning law. He has also (wrongly) voted to strike down many criminal sentences under the Booker line of cases.

But Justice Stevens has very seldom voted to strike down laws favored by social liberals, even when they conflict with past Supreme Court precedents and the clear text of constitutional provisions. And he rewrites federal statutes to exempt from regulation practices favored by liberal activists.

Justice Stevens is much more liberal than Scalia is conservative.

He just doesn't realize it because he's surrounded by a liberal echo chamber (the legal profession). The American people are fairly moderate. But the legal profession is quite liberal, as is the Supreme Court bar.

When Clinton beat Bush the elder in 1992, his victory margin among the general public was only about 6 points. But he won among lawyers by a roughly 2-to-1 margin. And even most Republican lawyers are socially liberal, not socially moderate, and they are Republican based largely on non-legal issues, like opposition to high marginal tax rates.

The fact that Justice Stevens is a much nicer man on a personal level than the liberal justice he replaced (Douglas) and avoids taking overtly partisan positions the way Douglas did doesn't mean that he isn't liberal, any more than the fact that Rehnquist didn't publicly endorse Republican candidates didn't mean Rehnquist wasn't fairly conservative.
1.3.2007 1:10pm