Rappaport on Stevens

Mike Rappaport at the Right Coast has some thoughts about the Stevens speech reported in the New York Times. 

Stevens is reported to have said that he would have made different decisions as a legislator from the ones he made as a Justice if he had been presented with the question of the policy soundness of issues at stake in Raich and Kelo.  That is, as a policy matter he would prefer for the the Feds not to be able to go after California medical marijuana users and would have preferred that the property-holder not be kicked off her land in New London to make room for economic development.  Still, he claimed, the law required a different outcome and he went with the law.   

No major surprises here: sometimes judges would prefer a different outcome from the one they think is required by law.  Indeed, we generally like these stories (even when they come from Scalia) because they remind us that our judges aren't simply using their authority to enact their policy preferences.

Now what does Rappaport make of this unexceptional point?  Very hard to decipher.  Here's his analysis: 

In analying Stevens' comments, we can distinguish several ways in which a judge can behave:

-- First, the judge can decide a case as he would if he were a legislator.

-- Second, the judge can decide a case in accordance with the content of a constitutional provision (or of several interrelated constitutional provisions) that he believes would be desirable.

-- Third, the judge can decide based on the content of a constitutional provision that he believes the Framers gave to it.

While Stevens is portraying himself as restrained by the law, he in fact seems to fall under the first and the second categories.

In the case of Raich involving medical marijuana, Stevens is saying he would vote to allow the use of such marijuana.  That just means he is not following his desires in the first sense.  In the case of Kelo, it is a little harder to interpret Stevens.  Since Stevens claims to believe that "the free play of market forces is more likely to produce acceptable results in the long run than the best-intentioned plans of public officials," one might think he feels bound by the Framers' meaning.  But I don't think so.  Instead, I think he believes that what he regards as the most desirable reading of constitutional clauses generally is to allow the government to make economic decisions without constitutional restraint and therefore he is forced to construe the public use provision of the clause more leniently than he might otherwise desire. If I am right, then Stevens is restraining himself only in the second sense -- he is deciding the case differently than he would vote for as a legislator, but he is still choosing to give the constitutional provisions the meaning he believes are desirable.  He cannot claim to be bound by directions that he would not choose.

I find it hard to make much sense of this.  Is Rappaport's point that Stevens' purported preference for his account of the rule of law is still ultimately a ruling in accordance with his preferences generally such that Stevens gets no "credit" for ignoring the policy preferences he would have had as a legislator?  That can't be quite what Rappaport means because the justice who makes decisions based on what the Framers may have thought is just as committed to an interpretive preference that he gets to follow when interpreting a provision against her policy preferences.  For some reason, though, Rappaport thinks originalist decisions have some special status and furnish their judicial adherents with a free pass to make the claim that they ignored their preferences altogether in their judgments when they, all the same, get to rule in accordance with their interpretive preference.

So we learned something, I suppose, from Rappaport's analysis: policy preferences and interpretive preferences are two different matters and when a justice claims that she ignored her policy preferences, don't think she got nothing out of the decision because she got to follow her interpretive preference.  Fair enough.  But two points, then, in response:

1.  Originalists get no special consideration: they are also following their interpretive preferences.

2.  If we had to choose, I think we would tend to want justices who follow their interpretive preferences over their policy preferences when the two conflict.

Finally, good luck with your proposed amendment, Mike.  It sure beats a federal marriage amendment.  But, with all due respect to those of you worked up about Kelo, can't you think of more important and fundamental ways to amend the Constitution?