The Irony of Justice Stevens' Speech Entitled "Oops!"

On September 12, retired Justice Stevens delivered the 2014 Harold Leventhal Lecture to the Administrative Law Section of the D.C. Bar.  The spech, entitled "Oops!", pointed out what the Justice thinks are "oops" moments in judicial opinions.  One such moment, he says, was the failure of the Supreme Court in McCutcheon v. Federal Election Commission to recognize that there is no constitutional right of a citizen of one state to spend unlimited amounts to influence elections in other states.  He likens this notion to Bluman v. FEC, in which a three judge court upheld 2 USC 441e, the federal law barring foreign citizens from political contributions or expenditures for express advocacy.  Will Baude, at the Volokh Conspiracy, has an excellent post that focuses on Jessica Bulman-Pozen's argument to the contrary, contained in her recent article Partisan Federalism.  I need not rehearse that argument, with which I agree.  Rather, I wish to point out a big  "oops" moment of Justice Stevens.

First, the reason that the court in Bluman ignored any First Amendment considerations was because it thought the issue was a "foundational question about the definition of the American political community."   Judge Kavanaugh, the author of Bluman, noted that it is "fundamental to the definition of our national political community that foreign citizens do not have a constitutional right to participate in, and thus may be excluded from, activities of democratic self-government." But that is simply not the case with respect to American citizens, whatever their state of residence.   One would have thought that Justice Stevens, of all people, would appreciate this fact.  He was the author of  the Court's opinion in US Term Limits v. Thornton, in which the Court struck down Arkansas's attempt to impose term limits on its congressional delegation.  The reason, according to the Justice, was that Arkansas's action was "inconsistent with the Framers' vision of a uniform National Legislature representing the people of the United States."  It would wreck the "national character" of Congress "that the Framers envisioned and sought to ensure.  [It] would also sever the direct link that the Framers found so critical between the National Government and the people of the United States."  Justice Stevens can't have it both ways.  If Congress has a national character it follows that the "people of the United States," not just the people of each state in isolation, have an undivided interest in the composition of that body.  The issue of whether the United States is a confederation of states or the organic manifestation of the entire people of the nation was a hot issue in ante-bellum America, but has been more-or-less buried with the dead of the Civil War.  It is surprising to see Justice Stevens carrying the banner of the agrarian ante-bellum Southerners, albeit in a fresh context. It is also embarrassing to see his own inconsistency about the character of Congress. Oops!

 

Comments

[David Bernstein]

Exactly what I thought when I read Stevens' remarks, utterly inconsistent with his opinion in U.S. Terms Limits.

[Enrique]

The problem with Justice Stevens' premise is that judicial decisions are not independently falsifiable like theories in science are. That is, the justices themselves -- or a majority of them -- are the ones who self-referentially get to decide what constitutes a "correct" decision, so there is no intellectual honest way of deciding what constitutes an "Oops" moment independent of the courts' decisions themselves

[Enrique Guerra-Pujol]

The problem with Justice Stevens' premise is that judicial decisions are not independently falsifiable like theories in science are. That is, the justices themselves -- or a majority of them -- are the ones who self-referentially get to decide what constitutes a "correct" decision, so there is no intellectual honest way of deciding what constitutes an "Oops" moment independent of the courts' decisions themselves