Justice Stevens Tries to Rehabilitate His Unpopular Record

John Paul Stevens has kept busy since retiring from the Supreme Court in 2010. In addition to penning a memoir, he regularly travels around the country giving speeches on various legal topics, including defenses of his own judicial record and attacks on cases where he believes his former colleagues got it wrong. South Texas College of Law professor Josh Blackman has dubbed this the Stevens' "rehabilitation tour," and as Blackman notes, the latest stop came in Florida, where Stevens "directed his ire at Justice Scalia and his vote in McDonald v. Chicago, Chief Justice Rehnquist on the 11th Amendment, and for good measure Chief Justice Vinson and Justice Jackson on the 14th Amendment." Blackman argues that Stevens is being disrespectful to his former colleagues, and concludes, "JPS needs to stop this chicanery."

I confess to having my own special interest in Stevens' rehab tour. That's because the former Supreme Court justice was kind enough to make me a part of it. In a November 2011 speech at the University of Alabama School of Law (which I was not aware of at the time), Stevens responded to my criticism of his 2005 majority opinion in the Kelo eminent domain case, which I had described as an "eminent domain debacle." Citing me twice by name, Justice Stevens offered a lengthy justification for his ruling where he argued "that Kelo adhered to the doctrine of judicial restraint, which allows state legislatures broad latitude in making economic policy decisions in their respective jurisdictions."

I won't repeat my criticism of Stevens' Kelo decision here—you can read it for yourself in my review of his memoir—but I will say that the comments he made in defense of the ruling in Alabama continue to raise troubling concerns about Stevens' commitment to the written Constitution.

While it is true that the Supreme Court has, since the New Deal era, generally deferred to federal and state lawmakers when it comes to the constitutionality of economic regulations, that approach originated in the Court's overturning of a legal theory known as liberty of contract. Described briefly, liberty of contract held that the 14th Amendment's guarantee that no person shall be deprived of life, liberty, or property without due process of law served to protect the unenumerated right to seek lawful employment free from arbitrary and unnecessary government regulation. In the 1937 ruling which voided the liberty of contract doctrine, West Coast Hotel v. Parish, Chief Justice Charles Evans Hughes declared that because "the Constitution does not speak of freedom of contract…the legislature is entitled to its judgment."

In other words, according to West Coast Hotel, if the Supreme Court protects an unenumerated economic right, it is engaging in an inappropriate form of conservative (or libertarian) judicial activism. But as Justice Stevens also knows, the constitutional right at stake in Kelo was not an unenumerated provision, but a specifically enumerated one, the Fifth Amendment of the Bill of Rights, which includes these words: "nor shall private property be taken for public use without just compensation."

Under a process known as incorporation, most of the written provisions of the Bill of Rights have been held to be applicable against the states over the last century via the 14th Amendment, which forbids state governments from violating due process, equal protection, and the privileges or immunities of citizens. Therefore the Takings Clause of the Fifth Amendment applies to state and local governments just like it applies to the federal government.

So if Stevens (and others who share his view) is correct that the Takings Clause should be cabined in order to grant "state legislatures broad latitude," why not also limit the reach of the First Amendment in order to allow those same state officials the leeway to regulate speech as they see fit?

If the courts ever decide to consistently apply Stevens' pro-government deference, the Bill of Rights would be transformed into an afterthought.