As Stevens retires from court, one final duel with Scalia
Monday, July 26, 2010
It is fitting that the last duel between the old ink-slingers at the Marble Palace was over guns.
Justices John Paul Stevens and Antonin Scalia have been taking shots at each other for more than two decades -- their grudging mutual respect apparently as deep as their disagreements.
Their last showdown before Stevens rode off into the sunset came in McDonald v. City of Chicago. The court's 5 to 4 decision said the Second Amendment applies to state and local governments as well as Congress. Scalia was in the majority, Stevens among the dissenters, and the two of them took about a third of the ruling's 214 pages to explain their reasonings.
This was not unusual. Two of the court's leading intellectuals, Scalia and Stevens disagreed with each other about as often as any other pair on the court. Their conflicts involved the court's most enduring controversies -- abortion, gay rights, the death penalty, political speech -- and, just as importantly, diametrically opposed views on how to interpret the Constitution.
The two men served together nearly 24 years, longer than any of the others on the current court, and the McDonald decision gave them one last chance to debate how the court should decide which fundamental rights the Constitution protects.
"It was a valedictory of Justice Stevens about his mode of constitutional interpretation," said Kannon Shanmugam, a Supreme Court practitioner who has observed it from the solicitor general's office and also as a clerk to Scalia.
"And Justice Scalia felt the need to respond in kind in his own terms."
Stevens's 57-page dissent seemed to sum up a lifetime of constitutional jurisprudence. He said that the "liberty safeguarded by the 14th Amendment" is a "dynamic concept," not just a way to preserve rights originally recognized by the framers.
"The judge who would outsource the interpretation of 'liberty' to historical sentiment has turned his back on a task the Constitution assigned to him and drained the document of its intended vitality," Stevens wrote.
The Constitution endures, Stevens said, because it was deliberately written in broad strokes to provide for societal changes that could not be foreseen. "When answering a constitutional question to which the text provides no clear answer, there is always some amount of discretion; our constitutional system has always depended on judges' filling in the document's vast open spaces," Stevens wrote.