Why Justice Stevens Sees Himself as a “Judicial Conservative”

Justice Stevens has been known to classify himself as a “judicial conservative,” which has puzzled many court followers. Justice Stevens is often described as the leader of the Court’s liberal wing: He consistently tries to advance politically liberal outcomes, generally defending liberal precedents and often working to overturn conservative ones. Given that, why does he see himself as a “judicial conservative”? Back in early 2007, I offered a possible explanation:

I wonder . . . whether Stevens’ self-perception is just a reflection of the what the phrase “judicial conservative” used to mean. Oversimplifying things a lot, in the 1960s and 1970s judicial liberals were the folks who favored the courts bringing about dramatic changes to the foundations of American law. In contrast, judicial conservatives were the folks who favored resisting those changes. The Justices who embraced some dramatic changes but rejected others were the moderate conservatives. I don’t know whether Justice Stevens has this history in mind when he labels himself a “moderate conservative.” As far as I know, he was not asked to define what he meant by the label. But if he has this somewat outdated framework in mind, then it doesn’t seem particularly inaccurate to me.

A recent interview of Justice Stevens by Joan Biskupic adds some evidence to this hypothesis. Biskupic reports:

Stevens says he regards himself as a conservative of sorts — even today, when nearly every justice is to the ideological right of him. “You can be a conservative by deciding cases narrowly and paying attention to (precedent),” he says, then adds, “If you look at political outcomes” to label a justice, “it’s a very different thing.”

This is only a brief comment, and we don’t know the precise context of it. But taking it as face value, it seems to suggest that a Justice could consistently vote to try to make the law more aligned with the views of political liberals, but as long as he did so mostly in relatively small steps and by “paying attention” to precedent, that Justice would still be a “judicial conservative” in the sense used by Justice Stevens. I don’t think that’s a particularly inaccurate label given how such terms were used in the 1960s and 1970s, even if it is no longer how the terms are normally used.