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A Bit of Perspective, Please:

Ace of Spades agrees with my criticism of Justice Stevens as to Admiral Yamamoto and the death penalty, but refers to the "Ultraliberal Justice Stevens."

Let's have a bit of perspective: Today's Justice Stevens is by historical Court standards a moderate liberal. He's not nearly as liberal as Justices Brennan, Marshall, or Douglas were, for instance. He's not a death penalty abolitionist. His views on criminal procedure are generally moderate liberal to moderate. He's on the liberal end of this Court just because all the serious liberals (ultra- or not) are gone.

On a very few subjects, he might be "ultraliberal"; the Establishment Clause might be one such example, though even that's unclear. On racial preferences, he seems to have moved left, but he voted with the majority in the landmark 1989 Croson case, which set strict scrutiny as the constitutional test for racial preferences aimed at benefiting nonwhites; he may have moved from there, but I don't think he's moved very far. On federalism issues, he's solidly with the moderate liberals. On abortion rights, he's with the moderate liberals and not far from Justice O'Connor; his position is similar to that of much of the public (and not just "ultraliberals").

On punitive damages, he has often though not always taken a pro-business view (largely alongside Justices O'Connor and Kennedy, and much more so than, for instance, Chief Justice Rehnquist and Justices Scalia and Thomas). On sexually themed speech, he has tended to be in the middle, often voting to protect it but often voting to allow some regulations (more than Justices Marshall, Brennan, Blackmun, and Stewart). On Free Exercise Clause religious exemption questions, he has largely joined the conservative and moderate conservative Justices (though Justice O'Connor split from Justice Kennedy and the more solid conservatives on this). Even on war against terror questions, he has been joined by the other moderate liberals, and in one leading case, Hamdi v. Rumsfeld, by Justice Scalia.

Of course, if you're far enough left, Justices Kennedy and O'Connor would look ultraconservative, and if you're far enough right, Justices Stevens, Souter, Ginsburg, and Breyer would look ultraliberal. But that's why I suggest a bit of perspective -- a bit of looking using more objective standards (such as the makeup of the Court, the makeup of the country, or whatever else). And under those standards, Justice Stevens as a judge is a moderate liberal. (As a voter, he might still be more conservative, as he suggests in his interview with Jeff Rosen, but I can't speak with confidence about that.)

Dilan Esper (mail) (www):
Thanks for posting this, Professor Volokh. You are aboslutely right.

However, for many conservatives (and for many liberals), labeling the justices on the other side as more extreme than they are serves a political purpose. So don't expect anyone to heed your sensible advice.
10.30.2007 8:24pm
Just Dropping By (mail):
Thank you, Prof. Volokh. This is a useful perspective that is not often heard regarding this subject.
10.30.2007 8:30pm
Eugene Volokh (www):
Dilan Esper: Thanks, and I never expect -- but I always hope.
10.30.2007 8:47pm
sashal (mail):
Oh, Please, Evgeniy.
Ace of Spades.
Don't even stoop to that level of idiocy which AOS is.
Please.
Ace must be ridiculed , laughed at, despised for the stupidity.
But your name and his in the same sentence gives that idiot too much credibility...
10.30.2007 8:47pm
Nessuno:
I don't think I agree with this analysis of Stevens.

First, I think Volokh is correct that you can tease out "moderate" positions on a number of important legal issues, just as you can tease out a large number of liberal positions.

But the problem with this type of analysis is that it uses as a baseline a sort of O'Connor-Kennedy touchstone of "moderate" where if you are with them and the right you are center-right, with them on the left you are center-left, and if you are on the wrong side of a minority then you are either left or right, depending on on who your co-dissenters are.

The major flaw, of course, is that on almost any issue that the public can be intelligently polled on their opinion, the Supreme Court has been radically to the left of the country at large for half a century. Even the recent rightward movement hasn't corrected the situation.

You can take almost any issue to support this fact. Abortion: a large majority of Americans supports allowing states to regulate abortion widely in the third trimester as well as parental notification laws, etc, but the court has only recently upheld even the most minute regulation of the method of very latest term (and rarest) abortions. Death penalty: most Americans don't believe the way we conduct executions is even remotely cruel, yet the court seems oddly obsessed with the issue. Second Amendment: vast majority of Americans believe we have an individual right to bear arms, yet most court observers believe the court will not substantively recognize this right.

I could go on. The simple fact is that while Stevens is not as liberal as Brennan was, that alone cannot save him from being an "ultraliberal" in the sense that most people consider relevant, namely in relation to the American people at large. And placing Stevens on a spectrum of Justices doesn't resolve the matter either, since for all intents and purposes modern times have never seen anything approaching an "ultra-conservative" on the bench. (Have we even seriously contemplated what an ultra-conservative on the bench might look like? It's certainly not someone who could be a product of the modern legal-judicial establishment.)
10.30.2007 8:51pm
Anonymouseducator (mail) (www):
Nessuno: does it matter that the phrase used is "ultraliberal Justice"? If I were to refer to David Beckham as "slow," which is not an uncommon thing to do, does anyone think that I mean he is slow compared the general population?
10.30.2007 9:00pm
John McCall (mail):
Nessuno, none of the policy positions you stake out are out of step with mainstream liberal beliefs. If you'd like, you can complain that Stevens is a liberal, but you have no case that he's an "ultraliberal" unless you can show that he's more liberal than most liberals.
10.30.2007 9:21pm
frankcross (mail):
Nessuno, you're cherrypicking a few hotbutton conservative issues. If you take the full breadth of the Supreme Court's work, including economic questions, it definitely is not well to the left of the public.
10.30.2007 9:29pm
frankcross (mail):
Oh, and I may have given you a little too much credit, Nessuno. I'd like to see the evidence supporting your claims. The extensive polling on gun control shows a pretty steady majority over time in favor of stricter gun controls. Which makes me doubt your individual rights hypothesis (or which makes it pretty irrelevant). And a search for death penalty polls shows that only a minority favors, for example, imposing the penalty on those who committed crimes as minors. On abortion, the Court clearly allows third trimester regulation but just requires a health exception. An ABC News poll found that 60% of Americans favored requiring such an exception for the partial birth abortion ban. So I think you may have been wrong across the board on your characterizations of majority opinion.
10.30.2007 9:35pm
Jerry F:
Stevens qualifies as "ultraliberal" if your perspective is to compare his views with what the Constitution says. On the issue of abortion, for example, the Constitution is silent. The argument that abortion is a right protected under the Constitution is just as far to the left as the argument that state governments are constitutionally *required* to ban abortion, on the ground that babies have a right to life (it would be unconstitutional for a state to say that it is legal to kill any particular subgroup of people, so this argument is not completely farfetched). The American people is very divided on abortion, and I would not be surprised if both views had about as much support nationally.

If one takes a historical perspective as does Professor Volokh, then Stevens may be mainstream or centrist by comparison to all Justices since the Warren Court. But then again, Stevens certainly would qualify as "ultraliberal" by comparison to all SCOTUS Justices in American history, and perhaps by comparison to all 20th century justices as well, though that would be a closer call. Why should the comparison start with the Warren Court?
10.30.2007 9:58pm
Pluribus (mail):
Thank you, Professor Volokh, you for posting this information about Justice Stevens. The debate here is revealing, and quite worthwhile. If the truth be known, all Supreme Court justices have had personal experiences that powerfully affect their jurisprudence, some in ways that the justices themselves do not fully understand. I'm sure Thurgood Marshall's experience of being ordered to leave a small Southern town before dark because, "Boy, we don't like niggers around here after dark," affected his view of racial discrimination and his Supreme Court decisions on the Court. This is almost inevitable, given that justices must first be human beings, and human beings are feeling as well as thinking animals. Justice Stevens is more candid than most in speaking about this particular experience. Whether this is for the better or the worse is subject to debate.
10.30.2007 9:59pm
Cecilius:
Ace of Spades is a political blog and his use of the term "ultraliberal" is just throw-away hyperbole. I don't think the author meant to (or could) justify his use of the term based on some legal analysis of Justice Stevens' voting record and opinion. I do have to take issue though with the claim that "all the serious liberals (ultra- or not) are gone." Unless Justice Ginsburg stepped down in the past few days and I missed it.
10.30.2007 10:07pm
Nessuno:
Anonymouseducator:

does it matter that the phrase used is "ultraliberal Justice"? If I were to refer to David Beckham as "slow," which is not an uncommon thing to do, does anyone think that I mean he is slow compared the general population?


No, it does not matter. I realize you are resting on the "Justice" part of the phrase, but my point is that people care about the ideologies and decisions of the Justices almost exclusively in relation to the American people. It might be academically interesting to rank Justices versus each other, but all the political drama of appointments and the angst in the American people about future Supreme Court decisions stems from the practical application of issues they care about in the real world, not the legal world.

John McCall:

Nessuno, none of the policy positions you stake out are out of step with mainstream liberal beliefs. If you'd like, you can complain that Stevens is a liberal, but you have no case that he's an "ultraliberal" unless you can show that he's more liberal than most liberals.


Well this gets into a debate about where on the political spectrum "ultraliberal" lies. No one can answer that, but our country is basically a 50-50 nation, so I personally consider anything below 35% popularity to be an extreme position.

But even that number doesn't help much because, firstly, I'm not going to fish for polling the rest of the night, and secondly, no one has polled Stevens. The second point is important for people to understand though. I think it is fair to say that Stevens and other liberals on the court have been constrained by the presence of Justices to his right. Exactly how far left would Stevens go in support of a majority? We'll never know because, thankfully, we don't have a court that is made of only "ultraliberals".

But I believe this lack of clarity only serves to show how specious Volokh's argument is. He attacks Ace's characterization of Stevens with a certainty he surely cannot possess.

frankcross:

Nessuno, you're cherrypicking a few hotbutton conservative issues. If you take the full breadth of the Supreme Court's work, including economic questions, it definitely is not well to the left of the public.


I don't believe that the American publican can be intelligently polled on "most issues" that the court decides. I'm only picking topics that I believe the American people can be (and are) polled most frequently. Anyway, as Scalia likes to point out, the vast majority of cases aren't ideological in any way.


The extensive polling on gun control shows a pretty steady majority over time in favor of stricter gun controls. Which makes me doubt your individual rights hypothesis (or which makes it pretty irrelevant.)


You're free to disagree, but you're not free to distort the issue. I noted that scholars (including Volokh, if I recall) don't believe the court will find an individual right to bear arms under the second amendment. My contention is that the vast majority of Americans don't support that view. My contention says nothing about the extent to which gun ownership can be regulated under that individual right.

You similarly mis-characterized what I said about the death penalty.


On abortion, the Court clearly allows third trimester regulation but just requires a health exception.


Really? Is that your genuine understanding of current abortion law? The reality is somewhat more...nuanced. In fact, as the partial-birth abortion cases show, even one of the rarest and unnecessary abortion procedures cannot be effectively regulated because there are always doctors available to testify that the individual procedure is necessary in some instances. So, regardless of what the rule may be, doesn't that have the practical effect of making it virtually impossible to regulate abortion? I think it does.
10.30.2007 10:15pm
Gov98 (mail):
On the other hand,

Suggesting that killing a military leader in a time of war of the country trying to kill as many of your countrymen as possible is analogous to the death penalty and that both give you cause for concern is something that many would probably think could only be said by someone with a fairly askew moral compass. So maybe Stevens isn't "ultraliberal" but he maybe worse.
10.30.2007 10:16pm
Edward A. Hoffman (mail):
Eugene's perspectives is exactly right, and is why I always cringe when I hear the media (or lay people) refer to the "liberal wing" of today's Court. The Court today doesn't even have a liberal justice, let alone an entire liberal wing.

While I generally don't like to oversimplify something as nuanced as a person's political leanings, the current justices' views can be usefully summarized as follows:

One moderate liberal (Stevens);
Three centrists (Ginsburg, Breyer and Souter);
One moderate conservative (Kennedy);
Two conservatives (Roberts and Alito), and
Two extreme conservatives (Thomas and Scalia).

In other words, four justices are further to the right than Stevens is to the left -- and he's the only one significantly left of center at all. This is a very conservative group by any reasonable standard, yet the Court is commonly portrayed as if it has a true balance of liberal and conservative voices. That may have been true 20 or 25 years ago, but it certainly isn't today.

[Before others weigh in, I agree that Ginsburg, Breyer and Souter are a bit left of center. In my view, however, they are not far enough to the left to qualify as even moderately liberal, let alone truly liberal. Reasonable people can disagree with me on this point. Few, however, will disagree that Stevens is closer to the center than Roberts, Alito, Thomas or Scalia.]
10.30.2007 10:24pm
18 USC 1030 (mail):
Nessuno

I realize you are resting on the "Justice" part of the phrase, but my point is that people care about the ideologies and decisions of the Justices almost exclusively in relation to the American people. It might be academically interesting to rank Justices versus each other, but all the political drama of appointments and the angst in the American people about future Supreme Court decisions stems from the practical application of issues they care about in the real world, not the legal world.

This is why the Justices are not, and ought not to be elected by the people. The role of a Justice ought to be purely legal: we should not be putting Justices on the court because we like them politically. Agree with their legal positions? Yes. Politics? Absolutely not. This is why the recent confirmation hearings (since Bork)have been out of control. The pandering, lies, mis-characterizations, and hatred thrown at potential Justices by various groups is not what the founders had in mind when they created the independent judiciary. Politics was supposed to be eliminated, as much as possible from the court: The judiciary was supposed to protect us from the whims of the political branches. The more one focuses on politics for rejecting a potential member, the worse it will be in the future.

I for one would much rather a court made up of sound legal decisions than one that is purely up to the whim of the populace.
10.30.2007 10:31pm
Jerry F:
Hoffman's post is lacking the very perspective that Professor Volokh sought to promote in his post. Justice Scalia and Thomas are only conservative in the sense that they are upholding what the Constitution says, and thus can hardly be considered conservative, or at least nowhere as conservative as Kennedy, O'Connor, Ginsburg, Souter, Breyer and Stevens are liberal. Kennedy made up a right to homosexual sodomy out of "the mysteries of human life"; this is just as far to the left as someone who believes that states are constitutionally required to PROHIBIT homosexuality is to the right (one could conceive of a super-conservative justice arguing that states must ban homosexuality because it is incompatible with all of our values and traditions, and citing Leviticus. This is no crazier than Kennedy citing random pieces of international law). Even Scalia would never make this kind of argument, which can only mean that Scalia is less far to the right than Kennedy is to the left.
10.30.2007 10:51pm
Dave Hardy (mail) (www):
But if Stevens was profoundly troubled by the thought of killing an Axis leader ... wouldn't that make him far, far right wing?

More seriously, one might wonder whether Thomas' originalism might not have made him a lion of the left, as it were, had he been sitting in the early 1960s. Not only are right-left distinctions questionable when we assess the Supreme Court, but the very standards have shifted so far. In 1960, had there been a statute making it generally illegal to buy airtime and mention the name of a candidate for office, I rather suspect that striking it would have been seen as a "liberal" cause and upholding it a decidedly "conservative" one.
10.30.2007 10:54pm
Anonperson (mail):
It seems to me that there is some degree of reading too much into Justice Stevens' comments. It was just an interview, after all.

He didn't say that he disagreed with the decision, only that he was troubled that there was not more "deliberation or humanitarian consideration".

I'm not saying that his comments are not suggestive of a position, just that I don't think it's been articulated well-enough yet to warrant all the words and thought that we've given to it.
10.30.2007 11:01pm
frankcross (mail):
Nessuno, I'm still looking for some support for your position. The "individual rights" position may or may not have majority support, you have offered no evidence. Your contention doesn't mean much without that evidence. But it is clear that it has no practical significance to people if they want more gun control. On abortion, the majority want a health exception to late abortions, which is the same as the liberals on the Court, but not the conservatives. If that makes it impossible to stop abortions, that's irrelevant, its the public majority position.

Where is your evidence on these issues? When I searched for polling results., it all supported the opposite of your claims.
10.30.2007 11:23pm
Relativity (mail):
With all respect to Professor Volokh, this post strikes me as a bit pointless. I think Professor Volokh is right to suggest that how you label political positions depends in large part on your own political perspective. It also depends on those political issues that you feel are most important. If I am adamantly anti-abortion, I'm more apt to label J. Ginsburg an extreme left-winger even if it's true that she sometimes votes with the right-wing bloc on an issue that I don't really care about. And it's probably also true that there is a non-lunatic range of possible ideological labeling. To say that Scalia is left-leaning is lunacy. To say that he is centrist is verging on lunacy, but perhaps not quite there...? Who knows? Once we move out of the lunatic labeling zone, it all becomes a little silly. To take folks to task and urge "perspective" (historical, political, what perspective is it you're urging on us?) presupposes that you've got the right one. At this point in time, I don't consider it lunacy to label Justice Stevens an ultra-liberal. It's just that the label reads the labeler as much as it reads Stevens.
10.30.2007 11:31pm
Edward A. Hoffman (mail):
Jerry F. wrote:
Hoffman's post is lacking the very perspective that Professor Volokh sought to promote in his post. Justice Scalia and Thomas are only conservative in the sense that they are upholding what the Constitution says, and thus can hardly be considered conservative, or at least nowhere as conservative as Kennedy, O'Connor, Ginsburg, Souter, Breyer and Stevens are liberal.
This seems more like demonization than rational argument.

If you equate "conservative" with "upholding what the Constitution says", what do you think "liberal" means? Do you seriously believe liberal justices disregard what the Constitution says? Liberals and conservatives often interpret the Constitution differently, but neither side disregards it. Certainly none of the justices on the Court do.
10.30.2007 11:38pm
Mike G in Corvallis (mail):
Liberals and conservatives often interpret the Constitution differently, but neither side disregards it. Certainly none of the justices on the Court do.

Except for those pesky Ninth and Tenth Amendments, of course. And possibly the Second. And occasionally parts of the First.
10.31.2007 12:21am
JPaulG (mail):
Nessuno,

On the abortion issue it is quite reasonable for a "conservative" judge to end up making "liberal" judgemnts. The concept of following precedent and not making things up as you go along based purely on your political whims means that judgements in one area of law will be based in large part on previous judgements.

Even if a judge vehemently disagrees with abortion as a personal moral issue they are obligated by oath to apply the laws of the land. Even if the majority of the public are to the right (or left) of a particular issue judges should have something a bit more substantial than "I don't like it" to overturn something that's been settled law for the best part of 40 years.

If the simple fact is that the majority of the people in the country think that states should have the right to regulate abortions then why doesn't someone just propose an appropriate amendment to the constitution? I'd much rather than get into the witch trial antics that pass for confirmation hearings these days.
10.31.2007 12:23am
George Grady (mail):
I found this post very interesting. There are books easily available with relatively short (chapter length) articles about U.S. presidents with information about their lives, accomplishments, political outlooks, etc. Does anyone know of something similar about Supreme Court justices? I know some caricatures about some of the more well-known justices, but I'd like to learn a bit more.
10.31.2007 12:24am
Bob from Ohio (mail):
No "ultraliberals" but 2 "extreme conservatives". "Extreme" as compared to whom?

Ginsberg is the former general counsel of the ACLU. She is only "centrist" in Berkley or Manhattan, at best.
10.31.2007 12:25am
unhyphenatedconservative (mail):
Dave Hardy, your crack about "Axis leaders" and right wingers marks you as useless. As I recall, the Nazis were National Socialists. Socialism is hardlsy a movement of the Right.

However, as a conservative, I must also question the idea that limiting punitive damages is a conservative, originalist view. Where does the Constitution address punitive damages any more than it does abortion. Or are both simply both simply emanations of penumbras?
10.31.2007 12:29am
unhyphenatedconservative (mail):
Dave Hardy, your crack about "Axis leaders" and right wingers marks you as useless. As I recall, the Nazis were National Socialists. Socialism is hardly a movement of the Right.

However, as a conservative, I must also question the idea that limiting punitive damages is a conservative, originalist view. Where does the Constitution address punitive damages any more than it does abortion. Or are both simply both simply emanations of penumbras?
10.31.2007 12:29am
unhyphenatedconservative (mail):
Dave Hardy, your crack about "Axis leaders" and right wingers marks you as useless. As I recall, the Nazis were National Socialists. Socialism is hardly a movement of the Right.

However, as a conservative, I must also question the idea that limiting punitive damages is a conservative, originalist view. Where does the Constitution address punitive damages any more than it does abortion? Or are both simply both simply emanations of penumbras?
10.31.2007 12:29am
unhyphenatedconservative (mail):
Arg!!!! Bloody crappy internet connection. Volokh and Associates, please feel free to delete my double and treble posts that happened because of crappy connection and unfounded assumptions that the original post didn't make it.

And correcting my misspelling of "hardly" would be cool too.
10.31.2007 12:34am
Edward A. Hoffman (mail):
Bob from Ohio wrote:
Ginsberg is the former general counsel of the ACLU. She is only "centrist" in Berkley or Manhattan, at best.
Instead of looking at her resume, look at her record. Can you point to an opinion she has written -- even back when she was on the D.C. Circuit -- which takes a position outside the mainstream?
10.31.2007 12:45am
Dave Hardy (mail) (www):
Dave Hardy, your crack about "Axis leaders" and right wingers marks you as useless. As I recall, the Nazis were National Socialists. Socialism is hardly a movement of the Right.

Read Oswald Spengler and you will understand.
10.31.2007 12:47am
GV_:
I'd love to see a similiar blog post on Justice Ginsburg, who is often labeled "far left" because of her pre-Court job. I can't think of many (any?) times where she was on the losing end of a 8-1 or 7-2 case where she took the "liberal" position. I think she has been a huge dissappointment. Thirty years from now, nobody will remember who she was.
10.31.2007 12:56am
Kazinski:
I am going to hurt my credibility here, but I have to agree with Eugene that Stevens is not an ultra-liberal. Unless of course Stevens goes on record expressing an opinion on Ace's strawman that Stevens would have felt the same about Zarqawi's "execution" as he did with Yamamoto.
10.31.2007 1:01am
John McCall (mail):
Well this gets into a debate about where on the political spectrum "ultraliberal" lies. No one can answer that, but our country is basically a 50-50 nation, so I personally consider anything below 35% popularity to be an extreme position.

...that puts as much as 70% of the population into one "extreme" camp or the other.
10.31.2007 1:37am
DangerMouse:
Do you seriously believe liberal justices disregard what the Constitution says?

Yes. They have turned "equal protection" on its head, to require racism against non-minorities and men. They have deliberately disregarded what "establishment" means with respect to Churches (paying taxes and using criminal laws to support a particular church, like the Queen is the head of the Church of England). They have inserted fake rights into the Constitution like abortion. They seem to think that Miranda (which Rhenquist should've had the guts to overrule) warnings are another Amendment. And depending if their view prevails, they will erase the Second Amendment from the Constitution entirely.

The very fact that liberal court-watchers use phrases like "living Constitution" shows how much they hate the written one. A written one slows them down, forces them to lie in their opinions, to disregard the meaning of words like "establishment", to mock us with idiotic ideas like penumbras from emanations, etc.

And of course Stevens is ultra-liberal.
10.31.2007 1:58am
Paul Allen:
Professor: Although I respect your opinion quite a bit, I must say I find your analysis to be a rather indelicate encouragement of the "Steven's is a Moderate" wing-bats.

Nessuno correctly remarks:

The major flaw, of course, is that on almost any issue that the public can be intelligently polled on their opinion, the Supreme Court has been radically to the left of the country at large for half a century.


Which is so if you strike the word 'radically' and shorten the interval to post 1970s--even when regarding unconvincing 'David Beckham analogy' given by another commenter.

Comparisons of Stevens to Justices forty years hence are fatuous. They first neglect evolving public standards and second make use of single-political-axis fallacy.

Let me illustrate this: if a Justice today supports the majority opinion in Brown, that makes him a moderate despite the fact that supporting Brown fifty years earlier was a liberal position. Similarly, if a Justice today supports the decision in Lopez, that makes him a moderate despite the fact that supporting such a decision fifty years earlier would have been a conservative position.
10.31.2007 2:05am
rlb:
By far the worst thing that the liberals on the court have done to the Constitution is to turn the "commerce clause" into the "police powers" clause. Penumbras, emanations, and the great mystery of life pale in comparison.
10.31.2007 2:10am
godelmetric (mail):
Putting aside Eugene's characterization of Stevens' Yamamoto comment, which I respectfully disagree with, this thread is flat-out insane -- these characterizations of the Justices' "politics," and in particular Stevens' decisions, don't seem to relate to reality, much less the way they actually vote.

To say that Stevens stands indisputably on the far left of a Court that counts Breyer, Souter, and Ginsburg as members is questionable at best. To call Stevens "'ultraliberal' by comparison to all SCOTUS Justices in American history, and perhaps by comparison to all 20th century justices as well," as one commenter does above, displays almost unfathomable ignorance of the history of the Court. He replaced Douglas, for goodness' sake.

Stevens reinstated the death penalty in Gregg's majority opinion overturning Furman. He voted against affirmative action in Bakke and has been on both sides of the issue. He voted to uphold a prohibition on flag-burning. Roe v Wade was decided before he even joined the Court.

And even if you manage to pigeonhole his idiosyncratic positions into some warped notion of "ultraliberalism," Stevens has still been nearly a model Justice in practice. He reviews his cert petitions independently, and writes the first drafts of most of his opinions (which is far more than can be said of most of the rest of the Court). He and Scalia are pretty clearly the best writers on the Court; even if you disagree with them, it's hard to argue that they're not sharp guys.

Professor Volokh's qualification of Stevens' jurisprudence is an admirable and respectful move; it's somewhat disappointing that so much of the commentariat is apparently unable to take the hint.
10.31.2007 2:11am
godelmetric (mail):
Just to drive the point home -- and because I hate to miss any opportunity to mention this -- Stevens replaced the guy who wrote that "alpine meadows," beaches, trees, and fish have legal standing. If Stevens is "ultraliberal," then I'm frankly somewhat curious as to what we're supposed to call Douglas.
10.31.2007 2:35am
Paul Allen:

He voted against affirmative action in Bakke and has been on both sides of the issue.

Bollinger.


Stevens reinstated the death penalty in Gregg's majority opinion overturning Furman.

You seem to forget that the Warren court did quite the same e.g. Maxwell v. Bishop and via the denial of cert in Rudolph v. Alabama. In contrast, Stevens joined the majority in Coker v. Georgia--again a point that was too extreme for even the Warren Court but not too extreme for Stevens.


Roe v Wade was decided before he even joined the Court.

Casey.
10.31.2007 3:31am
Hoosier:
"If Stevens is "ultraliberal," then I'm frankly somewhat curious as to what we're supposed to call Douglas."

'Binge-drinking serial monogamist'?
10.31.2007 4:00am
Frater Plotter:
Neither "wing" has a monopoly on ignoring the Constitution. While the egregious violations of recent administrations are the most obvious (and near to memory), violation of constitutional, civil, and human rights is an endemic trait of all authoritarian government, no matter what its ideology.

Both "conservative" and "liberal" administrations and legislatures have infringed upon the freedom of speech and of the press. Censorship, whether of political speech, commercial speech, or artistic expression, has long been a mainstay of American government. Even censorship targeted at "obscenity" frequently represses works of obvious literary merit, such as Allen Ginsberg's "Howl" or James Joyce's "Ulysses", as well as obvious sexual expression or erotica.

Both "conservative" and "liberal" wielders of power have used government authority to stifle freedom of assembly and petition. The infiltration and suppression of dissent groups has persisted through both Democrat and Republican administrations. Although carried out under color of "law enforcement", the political purpose of infiltration is to suppress the exercise of constitutional rights.

"Liberals" have infringed more upon the right to bear arms, since disarmament is part of their ideology. Until recently, "conservatives" might get more of a pass on search-and-seizure, due process, and the rights of the accused -- but the Bush administration have outdone the Clinton offenses here. Even the sheer enraged evil of Waco cannot equal the methodical evil of Homeland Security.

The systematic infringement of voting rights is largely the province of any government (anywhere in the world) that must give the appearance of elections but has the opportunity to evade transparency. It is not unique to any ideology whatsoever, and it is regularly practiced by any incumbent who is threatened by replacement and thinks they can get away with it.
10.31.2007 5:02am
David M. Nieporent (www):
But it is clear that it has no practical significance to people if they want more gun control. On abortion, the majority want a health exception to late abortions, which is the same as the liberals on the Court, but not the conservatives.
There are so many problems with this that I don't know where to begin -- but let's start by noting that you're conflating policy questions with legal ones. Whether the majority of the public "want" a health exception is an entirely separate question from whether the constitution requires it.

As to whether conservatives "want" a health exception, presumably they know that while in theory a health exception might be a minor exception, in practice, in the hands of liberal judges, it's an exception that swallows the rule. If the requirement of a health exception is interpreted to include a mental health component, all abortions are protected. Any woman who can't find a psychologist to claim that pregnancy would harm her mental health isn't even trying.

As for what the public actually thinks about abortion, if we went by detailed polls, most Americans think abortions ought to be protected for life/health/rape/incest, but not for economic reasons/convenience -- and the latter group make up something close to 95% of abortions in the U.S. An abortion law that tracked what the majority of the public wanted on the subject would be struck down in about 30 seconds by the liberal wing of the Court.


As for the gun control point, putting aside the policy/law distinction, people don't want more gun control. You claim they do by making reference to polls where people answer the vague question, "Do you want more gun control?" in the affirmative. Such poll questions are worthless, because they depend on the respondents having knowledge of the current state of the law. If you ask them specific questions about what restrictions they want, they don't favor stricter gun control laws.
10.31.2007 7:37am
Pluribus (mail):
These arguments about liberals and conservatives, ultras and moderates, prove that one or two word labels lifted from the political arena are piss-poor tools for analyzing Supreme Court decisions. These are spit balls in a school room. I really don't care whether the blogosphere regards Stevens as a liberal, an ultra-liberal, or a moderate. I do care about his previous decisions, precedents he is likely to follow, and his philosophy of constitutional interpretation, and they can't be reduced to bumper strip arguments. Use these arguments in a cert petition or on a brief and see where they get you.
10.31.2007 10:27am
Jonesy:
I think folks (including Professor Volokh) are taking the AoS labelling of Stephens as an "ultraliberal" a little too seriously. It's like someone at the Daily Kos calling Scalia an arch-conservative or a reactionary. It's a rhetorical flourish - a way of saying that the justice is too liberal or too conservative. I think it's fine for rough and tumble blogs of that nature to do that. I think Professor Volokh's point about the accurate labelling of judges (and politicians) is very well taken when the analysis turns to members of the mainstream media (and politicans). These people should know better, and they either don't know or don't care.
10.31.2007 10:41am
A.S.:
Prof Volokh writes:

Justice Stevens is by historical Court standards a moderate liberal


Why are "historical Court standards" the appropriate standard by which to judge the degree of Stevens's liberalness? It seems to me merely that Ace of Spades used a different standard by which to judge, which is perfectly appropriate for a commentator who is by no means attempting to provide an objective analysis. Who's to say that Ace's standard (whatever it is) is any worse than "historical Court standards"?
10.31.2007 11:00am
Hector Calvo (mail):
I've always considered Steven's moderation to be very strategic. If there were four others on the court to eliminate the death penalty, he would no doubt supply the fifth. But without a fifth vote, he is free to support the death penalty in theory while allowing it in practice. The same is true of his affirmative action jurisprudence.
10.31.2007 11:41am
frankcross (mail):
Well, pick at my polling evidence all you want, I see no actual sources being cited to the contrary. Just a desperate desire to believe that the majority is as conservative as the poster wants it to be.

Of course, the public is addressing a policy issue, and the Court is addressing a legal issue. Except that posters say that the Court is also being political. Except when you agree with the Court, when it is being properly constitutional. Are you posters so blind to your own biases that you don't see what you are doing?
10.31.2007 11:44am
PLR:
<blockquote>Why are "historical Court standards" the appropriate standard by which to judge the degree of Stevens's liberalness? It seems to me merely that Ace of Spades used a different standard by which to judge, which is perfectly appropriate for a commentator who is by no means attempting to provide an objective analysis.</blockquote>
Then he has no basis for disputing EV.

I agree with Edward Hoffmann's take, though I might put Thomas on his own little planet where Scalia only visits once in a while.
<blockquote>As for what the public actually thinks about abortion, if we went by detailed polls, most Americans think abortions ought to be protected for life/health/rape/incest, but not for economic reasons/convenience.</blockquote>
That is false, there is consistent majority support for elective abortions in the first trimester.
10.31.2007 11:48am
JohnO (mail):
I find it's best to refer to anyone who disagrees with me as a "Communist."
10.31.2007 12:09pm
DiverDan (mail):

On abortion rights, he's with the moderate liberals and not far from Justice O'Connor; his position is similar to that of much of the public (and not just "ultraliberals").


This may in fact be quite correct, as a purely political matter. But, while the great majority of the public often (or always) fails to distinguish between what they desire as a political matter and what the Constitution requires or prohibits as a legal matter, we have a right to expect more nuanced thinking from a Supreme Court Justice.

As a purely political matter, I believe that it is bad public policy for the government to prohibit abortion; it offends me as a libertarian that government can interfere with what ought to be private medical decisions, and, from a purely pragmatic viewpoint, I recognize that these types of prohibitions (just like prohibitions of drug &alcohol use and prostitution) are essentially impossible to enforce, and the efforts at enforcement will inevitably lead to unintended and unfavorable consequences.

HOWEVER, just because something is bad policy does not mean that it is unconstitutional. There was no textual support at all in the Constitution for Roe v. Wade, and none of its progeny, nor any of the numerous apoologists for its holding, have come up with any convincing arguments for why the Constitution prohibits government regulation of abortion (with the sole exception of cases involving federal regulation - there, I think that the concepts of federalism and of a limited central government should have held sway, leaving this area entirely to the states to regulate).

Stevens, however, has either failed to appreciate this distinction between policy and law, or has ignored the distinction and decided to use his authority as a Supreme Court Justice to "Constitutionalize" his own policy preferences.
10.31.2007 12:11pm
Hans Bader (mail):
Justice Stevens didn't concur in Croson's application of strict scrutiny to racial classifications. In fact he is skeptical of creating different levels of scrutiny, saying there is just one equal-protection clause.

Justice Stevens just joined in the result striking down the Richmond racial set-asides, without applying strict scrutiny.
10.31.2007 12:22pm
PLR:
DiverDan, how are The People harmed by being given additional rights through inventive readings of imprecise constitutional language?
10.31.2007 12:26pm
Waldensian (mail):

so I personally consider anything below 35% popularity to be an extreme position.

I suspect that at least 36% of the population would disagree with your definition of extremism.
10.31.2007 12:27pm
ejo:
cutting to the chase, is he generally regarded as a reliable vote on issues of interest to the left-one would have to answer yes. I doubt anyone of the liberal persuasion would trade him for Scalia because of his interest in anti-trust law, just as we can be sure they would rather have O'Connor than Alito or Roberts. more seriously, we have someone in such an important position who seems very much illogical.
10.31.2007 12:49pm
Bored Lawyer:

On punitive damages, he has often though not always taken a pro-business view (largely alongside Justices O'Connor and Kennedy, and much more so than, for instance, Chief Justice Rehnquist and Justices Scalia and Thomas).


Punitive damages well illustrates the difference between a political conservative and a judicial conservative.

A judicial conservative looks at the Constitution, sees that it says nothing about restricting or limiting punitive damages in civil cases, and decides he or she will not substitute his policy judgment about the effectiveness/fairness of large punitive damages absent a Constitutional mandate to do so. (This is Scalia's position, more or less.)

A political conservative may favor business interests, views heavy punitive damages as inhibiting that, and therefore looks for some basis to restrict what he or she sees as bad policy and runaway juries who do not appreciate the broader economic interests.

So which is the "conservative" position?
10.31.2007 1:01pm
ultra-extreme-skeptic on baselines:
I agree with EV that JPS is not "ultra" liberal, but on the other hand, I don't see why the Warren Court is the baseline. If the baseline is the Four Horsemen, then Scalia is way-out "lefty" in how much of the New Deal and Commerce Clause he accepts. So why is Warren the baseline? Is it because it is remembered by people still around, or is it because it's ideologically preferable in some quarters?

And I don't have time to Google or Lexis, but I am sick of seeing everyone to the right of Kennedy always labelled "ultra-extreme-hyper-right-wing-maniac." Supposedly serious profs toss out these terms for anyone who questions Roe or whatever. In my view, being for or against Roe, or other hot-buttons, is mainstream. It is simply nuts to define as "out of the mainstream" views that are held by either 3-5 Justices, or by 35-40% of the country. But some profs (not EV, of course) define as "out of the mainstream" views that are held by 70% of the darn country, if those view are rejected by 90% of the faculty. So if an occasional righty blogger does the same thing, he's still wrong, but a respectable truce means taking it up with those who have been playing this game for decades the other way.
10.31.2007 1:12pm
godelmetric (mail):
Kennedy's neither liberal nor conservative; he is staunchly pro-Kennedy.
10.31.2007 1:14pm
Hoosier:
"PLR:
DiverDan, how are The People harmed by being given additional rights through inventive readings of imprecise constitutional language?"

You mean aside from making it harder to convict those who kill people and steal things?
10.31.2007 1:21pm
CJColucci:
Anyone ever notice the frequency with which Justice Ginsburg's critics (who frequently single her out for sins real or imagined that she actually shares with folks named Stevens or Souter)spell her name "Ginsberg"?
10.31.2007 1:42pm
sjalterego (mail):
Nessuno:

If "our country is basically a 50-50 nation, so I personally consider anything below 35% popularity to be an extreme position" Then I guess you are saying that 70 percent of the people are Ultra-something. If you take a fairly conservative anti-abortion/pro-life position that only 35% of conservatives approve of and 65% of the country disapproves of and then take a fairly liberal abortion rights position that only 35% of liberals approve of and 65% of the country disapproves of, then you are left with only a 30% "sandwich" in the middle of people who are middle of the road and 70% of the population constitutes some form of radical fringe.

I think any definition of ultra would have to concede that you have to treat a majority (at least 50%) of the population as "middle of the road" and leave less than 25% at the edges.
10.31.2007 1:46pm
godelmetric (mail):
Wait, you mean she didn't write "Howl"?

Well, that certainly changes my view on things.
10.31.2007 1:47pm
Edward A. Hoffman (mail):
Hoosier wrote:
You mean aside from making it harder to convict those who kill people and steal things?
Keep in mind that such interpretations also make it harder to convict defendants who actually didn't kill people or steal things.
10.31.2007 2:23pm
PLR:
It appears that the republic has survived decisions such as Mapp and Miranda (neither of which granted additional substantive rights in any event). In fact, convictions have flourished if the percent of Americans currently incarcerated is any sort of barometer.
10.31.2007 3:05pm
GV_:
CJColucci, perhaps if she did something noteworthy on the court, people would remember how to spell her name?
10.31.2007 3:22pm
KeithK (mail):
PLR:

how are The People harmed by being given additional rights through inventive readings of imprecise constitutional language?


The People are harmed because their right of self-government has been usurped by the (nearly) unanswerable justices of the court. If the People through the legislative process set forth in the US Constitution and that of the several states choose to restrict certain activity then they have a right to. Even if these decisions are generally a bad idea.

Upholding Constitutional restrictions that are actually contained in the text does not usurp the power of self-government because such holdings implement decisions made by the People through a super-majority process that the People have agreed to. But this is different from creating new rights that are not contained in the text.

From the policy perspective of a libertarian PLR may be right that additional rights help, not harm, the People. But the court isn't about policy.
10.31.2007 3:23pm
DiverDan (mail):
PLR says:


DiverDan, how are The People harmed by being given additional rights through inventive readings of imprecise constitutional language?


KeithK gives a solid answer to this question. I would only add that PLR ought to read Judge Bork's comments on this - that the Constitution creates a balance of powers between the Federal Government, the States governments, and the People. When the Supreme Court creates an overly expansive reading of the Commerce Clause to give the Federal Government carte blanche to regulate everything, it is upsetting that balance by intruding upon the states' police powers, or, as in the Medical Marijuana case, by criminalizing essentially local conduct where the State has made a decision that the conduct ought to be permissible. When the Supreme Court invents new rights out of whole cloth (as in Roe v. Wade and Griswald v. Connecticut), it is restricting the power of a majority to act through their elected representatives, and quite often, as an unintended consequence, helping to clog our court systems by creating a whole new fertile ground for litigation. Finally, when the Supreme Court ignores a right which is firmly established by the text of the Constitution, as in Korematsu v. United States, or creates an unfounded exception to that right, as in Grutter v. Bolinger, it is usurping a right granted to the people and granting government the authority to restrict or even trample on that right. Every situation in which the Supreme Court either ignores or rewrites the Constitution has the effect of upsetting the balance of power set forth in the Constitution; now, if PLR likes the new balance because he approves of the right created by judicial fiat, that's fine for him, but that is NOT the way the Constitution is SUPPOSED to be amended, and the Court is engaging in an unconstitutional usurpation of the People's authority under Article VI of the Constitution to approve or disapprove of any rewrites to the Constitution.
10.31.2007 4:53pm
CJColucci:
perhaps if she did something noteworthy on the court, people would remember how to spell her name?

Perhaps, but then Ginsburg is in the same boat as Souter, a more unusual name and one nobody has any difficulty spelling. So why does Ginsburg get the grief others deserve as much as she does (at least from the point of view of the critics) and why do so many of her critics have trouble getting her name right, and make the same mistake?
10.31.2007 4:53pm
PLR:
KeithK, given a choice between (a) more personal liberty, and (b) my right to have the legislature intrude on personal liberty, I'll choose (a). I think there are enough libertarians around these parts to keep me company.

DiverDan, I share your concern when the Court ignores a personal liberty. But I think the check on the Supreme Court's overrated dictatorial power comes from the justices themselves, not from some abstract principle like originalism or its neo version that allegedly can be invoked to solve every dispute between the individual (as principal) and the government (as agent). If there comes a day when nine like-minded judges dispense with the writ of habeas corpus, it will be silly to say that we could have been saved if only a particular rule of construction had been followed by previous Courts.
10.31.2007 5:25pm
DiverDan (mail):

DiverDan, I share your concern when the Court ignores a personal liberty. But I think the check on the Supreme Court's overrated dictatorial power comes from the justices themselves, not from some abstract principle like originalism or its neo version that allegedly can be invoked to solve every dispute between the individual (as principal) and the government (as agent). If there comes a day when nine like-minded judges dispense with the writ of habeas corpus, it will be silly to say that we could have been saved if only a particular rule of construction had been followed by previous Courts.


I take it that PLR has abandoned any reliance upon the concept of "A nation of law", and willingly accepts "A nation of Men." I can't accept that, and if I were forced to accept that we have become a nation of men, where the powerful are untethered by any limits, even those in the Constitution, I would much prefer that the men we are forced to rely upon for our liberty were more readily answerable to the people than Supreme Court Justices serving life terms.
10.31.2007 5:52pm
PLR:
DD, I have not abandoned that concept, though there are certainly untethered forces at work in this 21st century that are encouraging me to abandon such a quaint notion.
10.31.2007 6:11pm
NickM (mail) (www):
Rehnquist was routinely misspelled as Rhenquist. I don't think it says much beyond that many Americans are poor spellers.

Ultraliberal as applied to Stevens is a ridiculous term. Asking Ace for his descriptive names for Brennan, Marshall, and Douglas might produce funny answers though. And asking about Justice Black might make his head explode.

Nick
10.31.2007 6:24pm
GV_:
CJColucci, Souter doesn't get "grief" from liberals like Ginsburg does because Souter was never supposed to be a liberal. He was appointed by a Republican President.

NickM, you can add Warren to that list as well.

I wonder what Asking Ace would think of Reinhardt (sp??) or Preggerson (sp?) on the Ninth Circuit. If they were on the Supreme Court, nobody would call any of the other Justices on the Supreme Court "ultra liberal." I suspect there's at least 6 or 7 judges on the Ninth Circuit more liberal than Stevens. (Reinhardt, Preggerson, Thomas, Berzon, Fletcher, and Fletcher come to mind immediately.) Now those are "ultra liberal" judges.
10.31.2007 6:36pm
PGofHSM (mail) (www):
I'm probably to Justice Stevens's left, but his ... let's call it memory blip ... about his own affirmative action positions really irked me.
10.31.2007 6:55pm
godelmetric (mail):
I wonder what Asking Ace would think of ... the Ninth Circuit. If they were on the Supreme Court, nobody would call any of the other Justices on the Supreme Court "ultra liberal."


Trick question. Since the 9th Circuit's raison d'etre is to be overturned, the political leanings of the judges should be counted in reverse.
10.31.2007 7:48pm
Edward A. Hoffman (mail):
godelmetric wrote:
Trick question. Since the 9th Circuit's raison d'etre is to be overturned, the political leanings of the judges should be counted in reverse.
The Ninth Circuit really isn't as wildly liberal as people often claim. It only appears that way by comparison because the Supremes and most of the other circuits are very conservative. That sort of underscores Eugene's original point, though I'm not sure he would agree with me on this one.
10.31.2007 8:12pm
godelmetric (mail):
I was kidding -- but I think the 9th is pretty liberal, whether you're speaking relatively or absolutely, with reference to either the judiciary or the general public. And regardless, they do get overturned about as fast as you can say "cert."
10.31.2007 8:27pm
Bob from Ohio (mail):
Why is the mis-spelling of Ginsburg as Ginsberg significant?
11.1.2007 12:15am
PLR:
Why is the mis-spelling of Ginsburg as Ginsberg significant?

It probably isn't unless you're either a big fan or a big detractor. If you (allegedly) know her positions well enough to single her out as a force, you ought to be able to spell her name.
11.1.2007 12:08pm
Mark F. (mail):
Question:

Who are the most liberal and the most conservative sitting judges in the Federal Circuit?
11.1.2007 2:14pm
Ralph Phelan (mail):
It's a matter of context. "Ace of Spades" isn't a law blog, but it's readers are likely to be generally informed about military history.

To them (and me), "ultraliberal" seems an apt description for someone who regrets the downing of Yamamoto's plane for "humanitarian" reasons - and that opinion is not affected by how he compares to other Supreme Court justices.
11.1.2007 3:41pm