JUSTICE STEVENS AND THE ARC OF PRECEDENT.

• Author: Barron, David J.
• Position: Supreme Court Justice John Paul Stevens - Washington University School of Law 150th Anniversary Commemorative Issue

In my office, I have a bobble-head doll of Justice Stevens. In one hand, he holds a golf club. Or, at least, he used to before my children--early in their young lives--became fascinated with this miniature version of the Justice. In his other hand, he holds an open volume of the U.S. Reports. The volume is opened to a case--and likely the most cited one Justice Stevens ever wrote: Chevron v. National Resources Defense Council. (1) I thought about that case, and Justice Stevens' relationship to it, as I read his wonderful address to this law school that is published in this volume of the law review. I thought about Chevron because so many of the themes that his essay touches upon--none of which advert directly to Chevron, or even to administrative law more generally--seem to intersect in one way or another with that case, the Justice's relationship to it, and recent commentary about it.

As Justice Stevens notes in his remarks, Justice Rutledge was a great influence in his life. Rutledge was a former law school dean and, prior to his appointment to the Supreme Court, a noted New Dealer. He attracted notice from the president who appointed him, Franklin Roosevelt, in consequence of speeches that he gave across the country that strongly supported the president's New Deal philosophy. In those speeches, Rutledge challenged the legal positions of those who opposed that philosophy on constitutional grounds.

Rutledge was, in many respects, a student and a proponent of the legal realist philosophy that swept through American legal thought in the first decades of the twentieth century. In this respect, it is fitting that Justice Stevens would author Chevron. That decision is, in many ways, a product of the jurisprudential philosophy that guided Rutledge and those of his generation.

Chevron reflects skepticism about the capacity of judges, relying on traditional tools of legal interpretation, to make effective social policy. A similar instinct underlay the hostility reflected in James Landis' classic legal realist work, The Administrative Process. (2) There, Landis, himself a New Dealer and former SEC Chairman, argued aggressively against the notion that economic policy should be made by judges enforcing their own views in the name of simply engaging in traditional common law development. Rather, Landis saw the virtue of enabling expert agencies to address the myriad difficult and unforeseeable social problems that legislators might wish to address, but whose details would inevitably escape them.

One sees that same theme--albeit updated for the age of statutes--quite present in Chevron. Justice Stevens explains that a critical issue of economic policy was at stake in that case: how much cost should a company bear in implementing a congressional command to take care to help make the air clean? The legislation, in Justice Stevens' view, in the end was silent on that question--at least in the relevant respect. The law made clear that companies were responsible for pollution emanating from a "stationary source." But what was that? A single smokestack? The plant itself?

In Justice Stevens' view, there was no use pretending that there was a legal answer to that question supplied by the statute when there was not. For that reason, he thought it made sense to assume that Congress had--Landis-like-- intended to leave such a decision to those regulatory experts that had been legislatively empowered to administer the statutory provisions at issue.

Put otherwise, just as Landis cautioned judges to be modest in their capacities to resolve difficult matters by relying on their tried and true methods of legal decision-making, so, too, did Justice Stevens in Chevron. Judges should be aware of what they do not know. In consequence, they should be on the lookout for signs from Congress to defer judgment on policy questions that had been assigned to others to make.

In that sense, Justice Stevens was not so much saying that others should say what the law is. He was just concluding that what the law said might be merely that there was a policy judgment for someone else to make. In...