One ought not to say ill of the dead, and so it should be with the late justice John Paul Stevens. The same reticence, however, should not be applied to the judicial philosophy that died long before his passing.
Stevens was one of the last of a long line of Republican court appointees who became liberal stalwarts on the bench. Chief Justice Earl Warren, he of the Warren court, was one such man. William J. Brennan Jr., often the true intellectual driver of the Warren court’s most important decisions, was another. So, too, was Harry A. Blackmun, author of Roe v. Wade. Much of our modern constitutional jurisprudence owes it provenance to Republican, not Democratic, court appointments.
None of these men came to the court with clear philosophical leanings. Warren, Stevens and Blackmun were Republicans as much because of ethnic heritage and temperament as because of dedication to a set of principles. (Brennan was an Irish Catholic Democrat whose 1956 appointment President Dwight D. Eisenhower thought would help in the following year’s election). Blackmun and Stevens began their tenures as much on the court’s right as on its left. But all became loyal and consistent devotees of a progressive jurisprudence, nearly indistinguishable from that advanced by Democratic appointments.
That is because in their day, Republicanism and conservatism were themselves devoid of any inherent principled definition. The same, I hasten to add, was true of Democrats. Before the twin revolutions of left and right that remade our partisan politics between 1964 and 2004, it was common to find liberals and conservatives in each party. Partisan affiliation was as much due to whose side granddaddy fought on in the Civil War or how one’s ancestors were treated when they arrived in the United States than any set of ideals.
Stevens was part of that non-principled politics. He was born in Chicago in 1920, so long ago that a Republican ethnic machine still ran the city with the support of the city’s growing African American community. He was a man of English Protestant Northern descent born into a family that at one time was one of the wealthiest in Chicago. By the order of the day, that meant he was a Republican.
Stevens would not have encountered any set of ideas to challenge him when he went to law school after World War II. The pre-New Deal debate between legal realists and formalists had long been settled, and law schools were not yet riven by various ideologies masked as legal philosophies. He would have been educated in a non-contentious manner that took for granted the court’s jurisprudential evolution into one that actively supported the political goals of the New Deal. There was, as yet, no school of law-and-economics, no Federalist Society and no doctrine of original intent with which to grapple as a student.
Republicans such as Stevens were thus relatively untrained in serious legal thought when they were elevated to the bench. With nothing to moor them, it was easy to drift toward the intellectual school that both had rigor and social acceptance, that of the “living constitution” that in practice viewed the court as a tool to advance whatever aims the liberal agenda had at the time. Once they took up the cause, Republicans such as Stevens had the zeal of a convert in their pursuit of liberal jurisprudential ends.
It was inevitable that this school would die as the political conditions that gave birth to it passed away. From 1952 on, after liberal icon Adlai Stevenson won the Democratic presidential nomination, intellectual liberals did battle with other Democrats less devoted to abstract ideals. From 1955 on, after National Review was founded, intellectual conservatives did the same. The victories of George McGovern and Ronald Reagan within their parties presaged our current day, when partisanship is almost always a matter of principled choice rather than ethnic persuasion. As a result, one finds neither the conservative constitutionalism of Democratic-appointed Felix Frankfurter nor the liberal jurisprudence of Stevens on the Supreme Court.
Those of us who are conservatives by conviction rather than by temperament salute this development. The Federalist Society, to which I have proudly belonged since I enrolled at the University of Chicago Law School in 1987, has given a rigor to non-progressive legal thought entirely lacking before its creation. Federalists disagree on many things, but the disagreements are rooted in principles and fought on the battlefield of ideas. This world was entirely alien to Stevens, and he never seriously adapted to it.
Stevens was a good man and did as he thought right. Those of us who are jurisprudential conservatives in the modern sense do not dispute this. We merely think that he was wrong in a host of areas and fight strenuously within the Republican Party to ensure that our views prevail when judges and justices are appointed. The intensity and bitterness this development has helped to bring to our judicial confirmation process are unfortunate, but they are merely a byproduct of our attempt make the court less, not more, important to our political life. It is sad the man has gone, but it is welcome that the era he represented is no more.