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October 15, 2012

"John Paul Stevens, Originalist"

The title of this post is the title of this intriguing paper now on SSRN by Professor (and former Stevens clerk) Diane Marie Amann. Here is the abstract:

Commentators, including the author of a recent book on the Supreme Court, often attempt to give each Justice a methodological label, such as "practitioner of judicial restraint," "legal realist," "pragmatist," or "originalist." This Essay first demonstrates that none of the first three labels applies without fail to Justice John Paul Stevens; consequently, it explores the extent to which Justice Stevens's jurisprudence paid heed to the fourth method, "originalism."  It looks in particular at Justice Stevens's opinions in recent cases involving firearms, national security, and capital punishment.  Somewhat at odds with conventional wisdom, the Essay reveals Justice Stevens as a kind of originalist -- as a Justice duty-bound to identify and enforce principles, such as liberty and fairness, that the Framers embedded in the Constitution.  To do so, Justice Stevens has practiced a fifth methodology, one that synthesizes many sources and interpretive techniques in an effort to reach a decision that serves a contemporary understanding of justice.

I must note that this Essay mentions Baze in its discussion of Justice Stevens as an originalist, but makes no mention of Apprendi.  For that reason, I suspect that this piece is more provocative than comprehensive in making the case for a special kind of Stevens-filtered originalism.  Still, with the last section of the Essay headed "Justice Stevens, Justice Scalia, and the Substance of Liberty," I think this is still a must-read.

October 15, 2012 at 03:43 PM | Permalink

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Comments

Justice Stevens dominates the speech page on the USSC website. His recent speech on the "Stop the Beach" case is part of his "just because I'm off the bench, I won't stop sparring with Scalia" series. In fact, he recused himself in the case, so the speech allows him a platform to spar with him on the case.

http://www.supremecourt.gov/publicinfo/speeches/speeches.aspx

On the specific subject, Brennan repeatedly used history to defend his view too. Stevens' Heller and McDonald dissents show both sides can use law office history and have people call it "originalist."

Posted by: Joe | Oct 16, 2012 12:03:39 AM

"Robert Heron Bork, Originalist"

Posted by: Adamakis | Oct 16, 2012 12:08:24 PM

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