During the hearings on Robert Bork’s nomination to the U.S. Supreme Court in the fall of 1987, Senator Alan Simpson asked the conservative legal scholar why he wanted the job. No doubt, Simpson intended to serve up a slow pitch, right over home plate, but Bork swung and missed. “I think it would be an intellectual feast just to be there and to read the briefs and discuss things with counsel and discuss things with my colleagues,” he replied.
With those words, Bork destroyed his chances for confirmation….
NEW YORK — A day after swearing in the nation’s youngest chief justice in two centuries, the Supreme Court’s most senior member told a rare public audience Friday that learning on the job was essential.
Justice John Paul Stevens, 85, spent most of his talk at a Fordham Law School centennial celebration reviewing his history on the bench and emphasizing the importance of a flexible approach to the law.
“Learning on the job is essential to the process of judging,” he said. “At the very least, learning on the bench has been one of the most important and rewarding aspects of my own experience over the last 35 years.”
And what did Stevens provide as a prime example of his “learning,” of his improved “flexible approach to the law”?
“With respect to the constitutionality of affirmative action,” he said, “we have learned that justification based on past sins may be less persuasive than those predicated on anticipated future benefits.”
Persuasive? Should persuasiveness now enter the pantheon of approaches constitutional interpretation, along with textualism, original intent, structure, etc.?
I wonder if Stevens meant persuasive to the Court or persuasive to the country? Probably the former, since by the account of all polls and actual elections the country remains largely unpersuaded. In any event I find it interesting, and revealing, that Stevens’s comment assumes that affirmative action must be justified; the only question he has is the most “persuasive” way of framing its justification.
I’m sure that when Stevens leaves the Court he will be celebrated in all the usual places as a great paragon of learning and flexibility (except when he is equally celebrated as someone who “grew” into a stalwart defender of liberal principles). That’s too bad, for the younger Justice Stevens knew some important truths that the older, flexible, learned Justice Stevens has now forgotten, or repudiated.
For example (as I’ve quoted once before, here), dissenting in part in Bakke, joined by Chief Justice Burger, Justice Stewart, and Justice Rehnquist, Justice Stevens defended the principle of colorblind non-discrimination as clearly embodied in Title VI of (indeed, throughout) the Civil Rights Act of 1964:
The University, through its special admissions policy, excluded Bakke from participation in its program of medical education because of his race. The University also acknowledges that it was, and still is, receiving federal financial assistance. The plain language of the statute therefore requires affirmance of the judgment below. A different result cannot be justified unless that language misstates the actual intent of the Congress that enacted the statute or the statute is not enforceable in a private action. Neither conclusion is warranted.
Title VI is an integral part of the far-reaching Civil Rights Act of 1964…. In the words of the House Report, Title VI stands for “the general principle that no person . . . be excluded from participation . . . on the ground of race, color, or national origin under any program or activity receiving Federal financial assistance.” [citations omitted] This same broad view of Title VI and 601 was echoed throughout the congressional debate and was stressed by every one of the major spokesmen for the Act.
The sad, downward trajectory of Justice Stevens’s views on the principle of colorblind non-discrimination reveals all too clearly that “growth” and “learning” and “flexibility” are not always good things in a judge.