Epstein Says Justice Stevens' Recent Interviews Are a Disservice to the Court

Uneven Stevens
Richard A. Epstein
Defining Ideas
October 17, 2011

In recent years, American political life has been marked by an increased level of political polarization. In Congress, the ever-sharper division between Democrats and Republicans has blocked any sensible political consensus. The pains of  partisanship are also (echoed on the Supreme Court, where there is now a perfect alignment: the four liberal members of the Court were all appointed by Democratic presidents, and the five conservative members were appointed by Republican presidents. The current alignment represents a genuine departure from the past when liberal justices from Earl Warren, to William Brennan, to David Souter, to John Paul Stevens, were all appointed by Republican presidents.

At the present moment, the most pronounced symbol of our political unrest is Justice Stevens, the recent author of the much discussed book, Five Chiefs. In that book, he reflects on five Chief Justices—Fred Vinson, Earl Warren, Warren Burger, William Rehnquist, and John Roberts—whom he knew. Learning something about their personalities fills in the gaps in our knowledge of these important public officials. On the other hand, delving into the judicial output of the Supreme Court has a real downside. Justice Stevens’ public comments will have, I fear, the effect of diminishing the Supreme Court and, alas, of Justice Stevens himself. Whatever the merits of the book, the multiple interviews that he has given about the book have distilled its thesis to a few quotations that have the unintended consequence of conveying the weakness of his intellectual thought.  

In making this claim, I do not want to be understood as disagreeing with whatever Justice Stevens writes. Quite the opposite. As a classical liberal thinker, I often break sharply with the so-called conservative majority on a wide number of issues, and think that some of Stevens’ opinions should be regarded as landmarks in the law. I will discuss two of them briefly, before turning to the ways in which I think that his popular remarks, which have been widely quoted, have done real disservice to public discourse about the Supreme Court.

Richard A. Epstein