Good-bye, Justice Stevens

[Brown]

Today is the final day of the October 2009 US Supreme Court Term.

The cases that await the final day are two hot-button cases: one dealing with the Second Amendment, and one dealing with the First Amendment and religion. Both cases will draw the greatest attention. Also expected are a decision dealing with governmental power over accounting and ... curiously ... a decision about patent eligibility that has been mysteriously pending since November.

Today is also the final day for Justice John Paul Stevens. Good-bye Justice Stevens. I will miss you.

I have written at length about Justice Stevens before. I have not always agreed with him. I still scratch my head about his opinion in FCC v. Pacifica Foundation, in which George Carlin's "seven words" routine was deemed to be indecent:

These words offend for the same reasons that obscenity offends. Their place in the hierarchy of First Amendment values was aptly sketched by Mr. Justice Murphy when he said: "uch utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality."

Justice Stevens never cared for Carlin, even though Justice Stevens himself had a good sense of humor.

What I found most interesting about Justice Stevens was his eye for the practical. A rule that was unworkable (even if noble in principle) was a bad rule. Judicial decisions have consequences, he rightly felt, and a judge should be mindful of those consequences. Further, a judge should tailor a ruling to the world in which we live, not a world in which we WISHED we lived, or to a world in which we USED TO live.

There are those who have (and will) call Justice Stevens a "liberal." If they do so, it is because they apply a muddled definition of the term "liberal" or they apply no thought to the matter at all. Justice Stevens has been, for more than thirty years, pretty much where he has always been on the judicial spectrum. When he joined the Court, Justices Brennan, Marshall and Blackmun were deemed "liberal," and Stevens was conservative in comparison. Today, Justices Scalia, Thomas and Alito are deemed "conservative," and Stevens is liberal in comparison. And yet, his approach to legal questions has been basically the same over the years.

He was a good judge. Not always right, but always giving all sides a fair shake. He strove not let a desired outcome dictate the legal principles, and he chided his colleagues who seemed to do such things. His legacy is a legacy of practicality and reality.

 

[Brown]

It would have been a nice, storybook ending to his career if Justice Stevens left the bench with some momentous words. In today's final group of opinions, he offered several words, but none having the momentous impact his career may have deserved. Such is the nature of the life of a judge.

In the Free Enterprise case, Justice Stevens issued no opinion. The case was 5-4 (Justice Kennedy siding with the majority).

In the Bilski patent case, all members of the Court agreed upon the outcome, but they were split 5-4 on a rationale (with Justice Kennedy writing for the group of five). All agreed that a hedging method is not eligible for a patent. But Justice Stevens chided (with reason) Justice Kennedy's opinion for doing little to answer the question as to what it means for an idea to be patent-eligible. Justice Stevens had his own ideas, but they did not carry the day.

In the Christian Legal Society case, which determined that a public university could deny funding to a religious group that overtly wanted to discriminate on grounds of religion and sexual orientation, Justice Stevens wrote no opinion. The case was 5-4 (Justice Kennedy siding with the majority).

In the McDonald Second Amendment case, the result was 5-4 in favor of applying the Second Amendment to the States (Justice Kennedy voting with the majority), but the majority could not decide upon a rationale. Justice Stevens wrote a dissent. Although Justices Breyer, Ginsburg and Sotomayor spoke nicely of it, they did not join in it. Justice Stevens stood alone.

Although there is much to Justice Stevens's opinion in the McDonald case, a considerable portion of it is devoted to a feud (for lack of a better word) with Justice Scalia. Justice Scalia had written an opinion that sought to address some points in Justice Stevens's dissent, and Justice Stevens defended himself. In so doing, he returned to a theme I discussed in an earlier thread, Justice Stevens Fires a Shot Across the Bow, namely, that the understanding of rights changes over time:

But it makes little sense to give history dispositive weight in every case. And it makes especially little sense to answer questions like whether the right to bear arms is "fundamental" by focusing only on the past, given that both the practical significance and the public understandings of such a right often change as society changes.
...
Not only can historical views be less than completely clear or informative, but they can also be wrong. Some notions that many Americans deeply believed to be true, at one time, turned out not to be true. Some practices that many Americans believed to be consistent with the Constitution's guarantees of liberty and equality, at one time, turned out to be inconsistent with them. The fact that we have a written Constitution does not consign this Nation to a static legal existence. Although we should always "pa[y] a decent regard to the opinions of former times," it "is not the glory of the people of America" to have "suffered a blind veneration for antiquity." The Federalist No. 14, p. 99, 104 (C. Rossiter ed. 1961) (J. Madison). It is not the role of federal judges to be amateur historians. And it is not fidelity to the Constitution to ignore its use of deliberately capacious language, in an effort to transform foundational legal commitments into narrow rules of decision.
...
It is worth pondering, furthermore, the vision of democracy that underlies JUSTICE SCALIA's critique. Because very few of us would welcome a system in which majorities or powerful interest groups always get their way. Under our constitutional scheme, I would have thought that a judicial approach to liberty claims such as the one I have outlined—an approach that investigates both the intrinsic nature of the claimed interest and the practical significance of its judicial enforcement, that is transparent in its reasoning and sincere in its effort to incorporate constraints, that is guided by history but not beholden to it, and that is willing to protect some rights even if they have not already received uniform protection from the elected branches—has the capacity to improve, rather than "[im]peril," ante, at 15, our democracy. It all depends on judges' exercising careful, reasoned judgment. As it always has, and as it always will.

The theme of practicality resonates in Justice Stevens's last momentous opinion. And what does Justice Scalia have to say about practicality?

The next constraint JUSTICE STEVENS suggests is harder to evaluate. He describes as "an important tool for guiding judicial discretion" "sensitivity to the interaction between the intrinsic aspects of liberty and the practical realities of contemporary society." Post, at 24. I cannot say whether that sensitivity will really guide judges because I have no idea what it is.

This, then, winds up Justice Stevens's career, with themes of feasible, down-to-earth principles, readily understood not only by lawyers and judges but also by lay people who choose to learn about them, with a forward-looking recognition of what effects those principles may have upon lower courts and future litigants. Not a storybook ending, maybe, but not a bad way to wind up.

 

[Brown]

In the Christian Legal Society case, which determined that a public university could deny funding to a religious group that overtly wanted to discriminate on grounds of religion and sexual orientation, Justice Stevens wrote no opinion.

Sniff. No one reads my posts. No one checks up on me. Actually, Justice Stevens DID write a concurring opinion in the Christian Legal Society case, as did Justice Kennedy.

Discussion of the case would take a bit of time, but basically, the CLS got the short end of the stick originally because of the College of Law's nondiscrimination policy (barring discrimination on the basis of race, color, religion, national origin, ancestry, disability, age, sex or sexual orientation). Later, the College changed its tune and said that the CLS could not get money from the public teat because of violation of an "all-comers" policy (which said that any student must be allowed to participate and be a member).

The majority addressed the "all comers" policy. The dissent, led by Justice Alito, said the nondiscrimination policy would have been plainly unconstitutional, but Justice Stevens said, not so fast.

In my view, both policies are plainly legitimate.
...
In the dissent's view, by refusing to grant CLS an exemption from the Nondiscrimination Policy, Hastings violated CLS's rights, for by proscribing unlawful discrimination on the basis of religion, the policy discriminates unlawfully on the basis of religion. There are numerous reasons why this counterintuitive theory is unsound. Although the First Amendment may protect CLS's discriminatory practices off campus, it does not require a public university to validate or support them.
...
Those who hold religious beliefs are not "singled out"; ... those who engage in discriminatory conduct based on someone else's religious status and belief are singled out. Regardless of whether they are the product of secular or spiritual feeling, hateful or benign motives, all acts of religious discrimination are equally covered. The discriminator's beliefs are simply irrelevant.
...
What the policy does reflect is a judgment that discrimination by school officials or organizations on the basis of certain factors, such as race and religion, is less tolerable than discrimination on the basis of other factors.
...
Other groups may exclude or mistreat Jews, blacks, and women—or those who do not share their contempt for Jews, blacks, and women. A free society must tolerate such groups. It need not subsidize them, give them its official imprimatur, or grant them equal access to law school facilities.

 

[AvalonXQ]

The Bilski decision follows the patent pattern we've been laboring under for decades now.
1) There are ancient decisions which set up very nebulous rules for certain patent subjects with no clear boundaries or even well-defined rationales.
2) The Court of Appeals for the Federal Circuit, over the course of multiple decades of opinion, finally sets down a very clear standard for courts and the Patent Office to apply.
3) The Supreme Court rules that the Federal Circuit's articulated standard restricts patent issuance more than the Patent Act allows, striking down the standard but failing to replace it with anything definite. This returns the law to Step 1, and Step 2 begins again.
It provides patent practicioners with a lot of wiggle room, but the uncertainty is as problematic as it always is in a business/investment environment.