Decisions which are based on what are known as “unenumerated rights” in the Constitution, have long drawn the ire of conservatives. “It’s in recent years that Stevens has most become an activist judge,” Bork told me. “He finds rights in the Constitution that no plausible reading could find there.”
But such cases also raised his standing with liberals. “It was particularly selfless for Stevens to assign Lawrence to Kennedy,” Dellinger said. “He could have chosen the honor of writing Lawrence for himself. But it seems he wanted to make sure that the tentative vote to strike down the Texas law held up, and assigning the opinion of the Court to Kennedy locked in the majority.”
Andrew Siegel, a Stevens clerk and now a law professor at Seattle University, said, “Stevens believes that constitutional decision-making is conducted through the interpretation of a mix of various sources—a complex balancing act.” He added, “The glue holding it all together is judicial judgment.”
This is the core of Stevens’s disagreement with his great intellectual adversary on the court, Antonin Scalia. When it comes to interpreting statutes, Scalia believes that the Court should be guided by the words of the law “all by itself,” as Stevens put it. Steven G. Calabresi, a law professor at Northwestern and a co-founder of the conservative Federalist Society, told me, “What makes Stevens a moderate liberal is that he is fundamentally a legal realist, which means that when the text and history of the Constitution point in one direction, and good results and good consequences point in the other, he’ll usually go with what he sees as the good results.”
He added, “Scalia sees the role of the judge as to read the text and apply it—period. Stevens thinks the law is more of a living thing, and he takes text and history and applies it in a way that he thinks serves the purposes of the framers, not necessarily their exact words.“
Scalia wrote as a “needed response to Justice Stevens’s separate opinion.” He criticized Stevens’s assertions about the death penalty, but it was Stevens’s invocation of his own “experience” that really outraged Scalia. “Purer expression cannot be found of the principle of rule by judicial fiat. In the face of Justice Stevens’s experience, the experience of all others is, it appears, of little consequence,” Scalia wrote, adding, “It is Justice Stevens’s experience that reigns over all.”
Scalia’s mockery gets to the heart of his critique of Stevens’s jurisprudence—that his variability simply amounts to a judge’s whim. “That flexibility and malleability that Stevens talks about is really just a license for a judge to reach any result he wants,” M. Edward Whelan III, a former Scalia clerk who runs the conservative Ethics and Public Policy Center, said. “Scalia believes in rules.” According to Calabresi, “Stevens gives judges too much freewheeling power, and that’s not the way our system was supposed to work and not the way it works the best.”
