At the annual ABA meeting, the NYT re ports, SCOTUS Justice John Paul Stevens gave an interesting speech (the full text of which is available here):
Addressing a bar association meeting in Las Vegas, Justice Stevens dissected several of the recent term's decisions, including his own majority opinions in two of the term's most prominent cases. The outcomes were "unwise," he said, but "in each I was convinced that the law compelled a result that I would have opposed if I were a legislator."
On the one hand, I believe that judges should not act as legislators. So I commend Stevens on that score. On the other hand, however, because Stevens eschews traditionalism (my favored mode of interpretation), textualism, and originalism as methodologies of judicial review, he in fact is left largely unconstrained in his decision making. Accordingly, as we saw in yesterday's post on judicial review, there is nothing to prevent Stevens from acting as a legislator rather than a judge and, in fact, many observers would say that in cases like Kelo that was precisely what Stevens did.
As usual, by the way, Althouse just nails it:
Of course, you understand, that a judge who talks like this ? Scalia does it too ? is really bragging about how principled he is.
Precisely.
