Equal Protection Unmodified: Justice John Paul Stevens and the Case for Unmediated Constitutional Interpretation
31 Pages Posted: 7 Jun 2006
In one of his first major writings on the United States Supreme Court, Justice John Paul Stevens famously argued that "[t]here is only one Equal Protection Clause." In the ensuing three decades, that quotation has become something of a battle cry for commentators critical of tiered equal protection review, many of whom not only seek to dismantle tiered equal protection scrutiny but also to replace it with an alternative (usually more complicated) doctrinal super-structure. This Article argues that his association with these commentators has partially obscured Justice Stevens's unique equal protection methodology. While he shares (indeed inspired) their critique of the current tiered methodology, Justice Stevens has little interest in building a complicated alternative doctrinal super-structure. To the contrary, Justice Stevens advocates - and practices - an equal protection methodology that largely eschews mediating doctrine of any kind, instead focusing his energy on the unmediated application of the constitutional text to particular cases. This Article is both descriptive and evaluative, first demonstrating that Justice Stevens's equal protection methodology is largely unmediated, then assessing whether the results and consequences of his three-decade long experience with such a methodology reinforce or refute traditional scholarly criticisms about such an approach. The Article concludes cautiously, arguing that Justice Stevens has proven the plausibility of such an approach and has demonstrated that the traditional criticisms are at a minimum overstated, but that his approach has some disquieting consequences for the role of the Supreme Court within the American polity.
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