In the latest edition of The National Law Journal is an essay from Rodger D. Citron, an associate professor of law at Touro College Jacob D. Fuchsberg Law Center, who argues that Justice Stevens may be the last justice with a common law outlook. The full essay is at NLJ.com.
Here’s an excerpt:
“The focus on the political implications of Stevens' retirement obscures a more significant aspect to his departure: the loss of the Supreme Court's pre-eminent common law lawyer. Since his appointment to the Court in 1975, Stevens has decided cases in the manner of the quintessential common law judge. He generally decides cases narrowly, with careful attention to the facts of the particular case and primary attention paid to the contentions of the litigants. This approach is consistent with the common law notion that the law develops on a case-by-case basis over time.
Furthermore, although Stevens does not shy away from exercising judicial power, he nevertheless employs it in moderation, deferring to other legal decision-makers where appropriate. No other justice is as committed to the common law approach as Stevens. On the right, justices Antonin Scalia and Clarence Thomas are devout originalists, committed to deciding cases in accordance with their views of what the framers of the Constitution intended. Roberts — usually joined by Justice Samuel Alito Jr. — tends to be an ideological conservative. Justice Anthony Kennedy often decides cases in sweeping terms — even when the result is liberal, as in Lawrence v. Texas, which invalidated criminal laws outlawing homosexuality.
On the left, the distinctions are not as clear but are nevertheless evident. Justice Stephen Breyer often shares Stevens' views but is willing to go one step further and decide the case in accordance with his views of the appropriate policy. Justice Ruth Bader Ginsburg shares Stevens' attention to detail and nuance but tends to be more constrained about the exercise of judicial power. As for Justice Sonia Sotomayor, it's too early to tell.”