Justice Stevens and Constitutional Adjudication: The Law Beyond the Rules

Abstract:     
This article, written for a symposium marking the retirement of Justice Stevens, considers his approach to equal protection and free speech cases. It contrasts his longstanding attempts to pierce through mediating doctrinal rules in these areas and apply true constitutional meaning ("the law beyond the rules") with the more rule-bound approach exemplified by Chief Justice Roberts and other members of the Court’s conservative bloc. While appreciating Justice Stevens’ efforts in this regard, the Article also recognizes some of the problems he encountered in his quest. However, it also notes that the more rule-bound approach suffers from flaws of its own, even when judged against the criteria more rule-friendly justices offer to evaluate a given method of constitutional adjudication. Thus, whatever one might think of the ultimate success of Justice Stevens’ project, it is surely the case that the more rule-bound approach has not proven its clear superiority.

Number of Pages in PDF File: 48

Keywords: First Amendment, Equal Protection, Justice Stevens, Rules, Standards, Tiered Scrutiny

working papers series