The great importance Justice John Paul Stevens attaches to his bonds with former colleagues has long shone through his words and actions. Anyone who knows Justice Stevens knows of his deep admiration for his former boss, Justice Wiley Rutledge, whose deep ties to Washington University Justice Stevens emphasized in his recent remarks here. (1) During the year I had the privilege of serving as one of Justice Stevens' law clerks, retired Chief Justice Warren Burger passed away. A few days after Chief Justice Burger's death, Justice Stevens announced a decision from the bench. He revised his explanation of the majority's reasoning to incorporate a key precedent authored by Chief Justice Burger, whom Justice Stevens made a point of honoring by name. Of the very few other American jurists who approach Justice Stevens' achievements and renown, surely none ever wrote a first book that focused not on themselves or their views about the law but on other people. In Five Chiefs, (2) Justice Stevens did just that, building his narrative around the five leaders of the Supreme Court, from Fred Vinson through John Roberts Jr., whom he knew as a law clerk, advocate, and justice.
Justice Stevens' Washington University remarks about the late Justice Antonin Scalia follow the same form. With great nuance, Justice Stevens explored some of his and Justice Scalia's occasional convergences and more frequent divergences. Their joint history has great consequence for the history of American law. Justices Stevens and Scalia shared the Supreme Court bench for a quarter century, from Justice Scalia's arrival in 1986 until Justice Stevens' retirement in 2010. For much of that time they faced off as the intellectual leaders of the Court's left and right wings, the liberal and conservative bookends of the Rehnquist Court and the early Roberts Court.
In this brief essay, I take a step back from the detail of Justice Stevens' remarks to identify what seem to me some of the most broadly interesting and consequential contrasts that stand behind these two jurists' "liberal" and "conservative" identities. Here I want to set aside my reverence for Justice Stevens and my often critical view of Justice Scalia, in an effort to emulate the analytic integrity of Justice Stevens' remarks. I mean simply to describe three notable dichotomies that characterize the two Justices' bodies of work: Justice Scalia's methodological purism, traditionalism, and priority for order versus Justice Stevens' methodological eclecticism, openness to change, and dynamism. I think these contrasting facets of Justice Scalia's conservatism and Justice Stevens's liberalism reflect fissures that will continue to define our judicial system's differing perspectives on legal problems.
METHODOLOGICAL PURISM VS. METHODOLOGICAL ECLECTICISM
Perhaps the most emblematic feature of Justice Scalia's career was his advocacy and modeling of theoretically precise approaches to judicial decisionmaking. He was committed to firm legal rules and mistrusted flexible standards. (3) He was a rigid statutory textualist, almost singlehandedly persuading or browbeating his colleagues into cutting back their reliance on secondary evidence of statutory meaning, especially legislative history. (4) As a constitutional interpreter, Justice Scalia promoted originalism, culminating in his reliance on "original public meaning" in the landmark Second Amendment case District of Columbia v. Heller, (5) the apex of originalist jurisprudence on the Supreme Court. He rendered his interpretive methodologies not just as judicial opinions but as scholarship. (6) No judge ever achieves total purity of method, but Justice Scalia hewed more consistently to his methodological choices than any U.S. judge or justice of his generation.
When Justice Stevens made methodological arguments, they almost always inclined toward less rigidity and greater decisional flexibility. In free speech cases he argued, contrary to the most familiar axiom of First Amendment law, that the Court should not reflexively hold all content-based regulations of speech to violate the Constitution. (7) Early in his tenure he argued that the Court should abandon its tiered structure of variable equal protection scrutiny in favor of a uniform but flexible species of rationality review. (8) He lessened the Court's control over statutory interpretation by articulating the Chevron principle of deference to administrative agencies' constructions of statutes within their mandates. (9) As the Court focused the law of racial discrimination ever...