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Judicial Inconsistency as Virtue: The Case of Justice Stevens
Driver, Justin
Driver, Justin
Abstract
As Justice John Paul Stevens approached the end of his career on the Supreme Court, he contended that his lengthy service as an Associate Justice featured a jurisprudence of marked consistency. In 2007, when an interviewer asked what accounted for his being perceived initially as a "moderate conservative" and later as a liberal stalwart, Justice Stevens responded: "There are more members of the court now who are not moderate conservatives. . . . There are changes in the court that have to be taken into account."' Later that year, he sharpened his answer for a profile that ran in the New York Times Magazine. "I don't think that my votes represent a change in my own thinking," Justice Stevens stated. "I'm just disagreeing with changes that the others are making."
Legal scholars and journalists have also advanced the notion that Justice Stevens generally remained constant as the Court around him changed. Professor Cass R. Sunstein built upon this narrative in suggesting that the shift in perception of Stevens's place on the Court illuminated how dramatically the institution had turned to the right. "For a long period, Justice Stevens was well known as a maverick and a centrist-independent-minded, hardly liberal, and someone whose views could not be put into any predictable category," Sunstein wrote. "He is now considered part of the Court's 'liberal wing.' In most areas, Justice Stevens has changed little if at all; what has changed is the Court's center of gravity." Charles Lane pithily expressed the point in the Washington Post: "As the country, the court and the GOP moved right, Stevens did not." By the time Justice Stevens retired last year, this notion had hardened into conventional wisdom. The ABA Journal story announcing Stevens's departure tellingly began: "The more things changed, the more John Paul Stevens stayed the same."s
Like many oft-repeated narratives, this one is not wholly inaccurate. Indeed, it cannot be denied that the Court grew increasingly conservative during the course of Justice Stevens's tenure. As Justice Stevens himself often suggested, nearly every Justice who has retired since he joined the Court in 1975 has been replaced by a more conservative Justice.6 But it is incorrect to suggest that, as
the Court became more conservative, Stevens generally remained in the same place. Instead, he moved sharply to the left-especially in cases raising society's most divisive legal questions. Examining Justice Stevens's early years on the Court reveals a Justice who cast votes and wrote opinions that would be inconceivable if he had issued them during his later years.