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As Stevens retires from court, one final duel with Scalia

By Robert Barnes
Washington Post Staff Writer
Monday, July 26, 2010; A11

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.

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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.

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"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.

Scalia responded that history must be the deciding factor in recognizing which rights the Constitution protects, that "the traditions of our people (are) paramount." Stevens prefers the other approach, Scalia said, because it allows him and other judges to pick and choose among the rights they think the Constitution should protect.

Stevens believes it is the duty of judges to "update" the Constitution, Scalia wrote, "so that it encompasses new freedoms the Framers were too narrow-minded to imagine."

The combatants employed frequent and familiar digs; Stevens called one of Scalia's points "very bizarre," but in general his pokes were more subtle. He warned that Scalia's approach turns judges into "amateur historians" and laments that "21 years after the point was brought to his attention by Justice William Brennan, Justice Scalia remains oblivious to the fact" that the concept of tradition can be just as elusive as that of liberty.

Scalia was a bit more direct, saying some of Stevens's arguments "are at war with reason" and mocking Stevens's line that judges should display "sensitivity to the interaction between the intrinsic aspects of liberty and the practical realities of contemporary society."

"I cannot say whether that sensitivity will really guide judges because I have no idea what it is," Scalia wrote.

Scalia also referred back to a former duel, when he wrote the majority opinion in District of Columbia v. Heller, another 5 to 4 ruling that held for the first time that the Second Amendment protected an individual right to gun ownership. Stevens wrote the principal dissent, and both men relied on historical analysis.

But Scalia said the two works should not really be compared except in "a two-dimensional world that conflates length and depth."

That prompted Gonzaga School of Law professor Brooks Holland to write a post on Prawfblawg.com wondering, "Was Justice Scalia Disrespectful to Justice Stevens on Stevens' Last Day?"

"I really meant it as a question," Holland said in an interview. As someone who teaches a legal ethics class, he said he wonders how rhetoric in opinions squares with respect for an opposing lawyer's work.

But he acknowledges that, after all this time, Scalia "could have been grinning when he wrote that line, and Stevens might have smiled reading it."

At any rate, the two old antagonists part with each having thoroughly failed to win over the other.

"It is Justice Stevens' approach, not the courts, that puts democracy in peril," Scalia signed off.

Stevens replied that it is "worth pondering . . . the vision of democracy that underlies Justice Scalia's critique" and added:

"I would have thought that a judicial approach to liberty claims such as the one I have outlined . . . has the capacity to improve, rather than imperil our democracy. It all depends on judges' exercising careful, reasoned judgment. As it always has, and as it always will."

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