John Paul Stevens, Originalist

Abstract

Commentators, including the author of a recent book on the Supreme Court, often attempt to give each Justice a methodological label, such as "practitioner of judicial restraint," "legal realist," "pragmatist," or "originalist." This Essay first demonstrates that none of the first three labels applies without fail to Justice John Paul Stevens; consequently, it explores the extent to which Justice Stevens's jurisprudence paid heed to the fourth method, "originalism." It looks in particular at Justice Stevens's opinions in recent cases involving firearms, national security, and capital punishment. Somewhat at odds with conventional wisdom, the Essay reveals Justice Stevens as a kind of originalist – as a Justice duty-bound to identify and enforce principles, such as liberty and fairness, that the Framers embedded in the Constitution. To do so, Justice Stevens has practiced a fifth methodology, one that synthesizes many sources and interpretive techniques in an effort to reach a decision that serves a contemporary understanding of justice.

Keywords: John Pau Stevens, Supreme Court, originalism, methodology, legal realism, judicial restraint, pragmatism, William O. Douglas, Felix Frankfurter, Robert H. Jackson, Hugo Black, Frank Murphy, Wiley B. Rutledge, Antonin Scalia, capital punishment, Second Amendment, national security

JEL Classification: K1, K19, K40, K41