Legal Commentary

Liptak on Stevens ? A Minor Error and Not-So-Minor Omission

By Jonathan H. Adler

I was not particularly bothered by Adam Liptak?s highly favorable treatment of Justice Stevens in the NYT article David highlights below. Justice Stevens appears to be nearing the end of a long, honorable, and important tenure on the Court.  He?s entitled to the occasional puff piece.  I was struck less by the uncritical nature of Liptak?s article than a by a curious, albeit minor, error and even more curious, but not-so-minor, omission.

First the minor error.  Liptak writes:

Justice Stevens is the leader of the court?s liberal wing, and its three other members ? Justices Ruth Bader Ginsburg, Stephen G. Breyer and Sonia Sotomayor ? all joined his 90-page dissent. They must have been tempted to write separately, as the case was bristling with issues of particular interest to all of them. Instead, they allowed the spotlight to shine solely on Justice Stevens.

There was no such solidarity among the conservatives. Though Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. all joined Justice Anthony M. Kennedy?s majority opinion on its main point, three of them added separate concurrences.

Liptak is trying to show that there was more ?solidarity? on the left of the Court, as the liberals deferred to Justice Stevens, while most of the conservatives had to have their own say.  But Liptak overstates his case.  There were not three separate concurrences on the right of the Court, but only two (those by Justice Scalia and the Chief Justice).  Justice Thomas, like Justice Stevens, wrote an opinion concurring-in-part and dissenting-in-part.  Moreover, Justice Thomas did not write separately to add his two cents in defense of the Court?s judgment, but to explain his dissent from one portion of the Court?s holding.

Now to the not-so-minor omission.  At multiple times in the article, Liptak quotes Justice Stevens and his Citizens United opinion decrying the majority?s willingness  to overturn prior Court precedents.  He does this early in the piece:

. . . there was no mistaking his basic message. ?The rule announced today ? that Congress must treat corporations exactly like human speakers in the political realm ? represents a radical change in the law,? he said from the bench. ?The court?s decision is at war with the views of generations of Americans.?

In the middle:

In his dissent, Justice Stevens said no principle required overruling two major campaign finance precedents. ?The only relevant thing that has changed since? those decisions, he wrote, ?is the composition of this court.?

And near the end:

?The majority blazes through our precedents,? he wrote, ?overruling or disavowing a body of case law? that included seven decisions.

From Liptak?s article, one gets the sense that Justice Stevens is a staunch defender of precedent, at least in the context of campaign finance and the First Amendment.  But this is not the case.  While Justice Stevens objects to the Court?s decision to overturn Austin and part of McConnell, he has called for a significantly more radical reworking of Supreme Court precedent in this area. As Justice Stevens explained in Randall v. Sorrell dissent, he wants to overturn a key part of Buckley v. Valeo (1973).  Specifically, Justice Stevens wants to overturn Buckley?s holding that the First Amendment prohibits statutory limits on campaign expenditures.  Whatever the merits of Justice Stevens? view, it is not based upon adherence to precedent.   Yet Liptak does not mention Stevens Sorrell dissen, leaving the reader with the mistaken impression that Justice Stevens stands on the side of stare decisis in campaign finance law.

Full post as published by The Volokh Conspiracy on January 26, 2010 (boomark / email).