The Volokh Conspiracy - A Bit of Perspective, Please:

Ace of Spades agrees with my criticism of Justice Stevens as to Admiral Yamamoto and the death penalty, but refers to the "Ultraliberal Justice Stevens."

Let's have a bit of perspective: Today's Justice Stevens is by historical Court standards a moderate liberal. He's not nearly as liberal as Justices Brennan, Marshall, or Douglas were, for instance. He's not a death penalty abolitionist. His views on criminal procedure are generally moderate liberal to moderate. He's on the liberal end of this Court just because all the serious liberals (ultra- or not) are gone.

On a very few subjects, he might be "ultraliberal"; the Establishment Clause might be one such example, though even that's unclear. On racial preferences, he seems to have moved left, but he voted with the majority in the landmark 1989 Croson case, which set strict scrutiny as the constitutional test for racial preferences aimed at benefiting nonwhites; he may have moved from there, but I don't think he's moved very far. On federalism issues, he's solidly with the moderate liberals. On abortion rights, he's with the moderate liberals and not far from Justice O'Connor; his position is similar to that of much of the public (and not just "ultraliberals").

On punitive damages, he has often though not always taken a pro-business view (largely alongside Justices O'Connor and Kennedy, and much more so than, for instance, Chief Justice Rehnquist and Justices Scalia and Thomas). On sexually themed speech, he has tended to be in the middle, often voting to protect it but often voting to allow some regulations (more than Justices Marshall, Brennan, Blackmun, and Stewart). On Free Exercise Clause religious exemption questions, he has largely joined the conservative and moderate conservative Justices (though Justice O'Connor split from Justice Kennedy and the more solid conservatives on this). Even on war against terror questions, he has been joined by the other moderate liberals, and in one leading case, Hamdi v. Rumsfeld, by Justice Scalia.

Of course, if you're far enough left, Justices Kennedy and O'Connor would look ultraconservative, and if you're far enough right, Justices Stevens, Souter, Ginsburg, and Breyer would look ultraliberal. But that's why I suggest a bit of perspective -- a bit of looking using more objective standards (such as the makeup of the Court, the makeup of the country, or whatever else). And under those standards, Justice Stevens as a judge is a moderate liberal. (As a voter, he might still be more conservative, as he suggests in his interview with Jeff Rosen, but I can't speak with confidence about that.)

	[Eugene Volokh, October 30, 2007 at 7:11pm] Trackbacks A Bit of Perspective, Please: Ace of Spades agrees with my criticism of Justice Stevens as to Admiral Yamamoto and the death penalty, but refers to the "Ultraliberal Justice Stevens." Let's have a bit of perspective: Today's Justice Stevens is by historical Court standards a moderate liberal. He's not nearly as liberal as Justices Brennan, Marshall, or Douglas were, for instance. He's not a death penalty abolitionist. His views on criminal procedure are generally moderate liberal to moderate. He's on the liberal end of this Court just because all the serious liberals (ultra- or not) are gone. On a very few subjects, he might be "ultraliberal"; the Establishment Clause might be one such example, though even that's unclear. On racial preferences, he seems to have moved left, but he voted with the majority in the landmark 1989 Croson case, which set strict scrutiny as the constitutional test for racial preferences aimed at benefiting nonwhites; he may have moved from there, but I don't think he's moved very far. On federalism issues, he's solidly with the moderate liberals. On abortion rights, he's with the moderate liberals and not far from Justice O'Connor; his position is similar to that of much of the public (and not just "ultraliberals"). On punitive damages, he has often though not always taken a pro-business view (largely alongside Justices O'Connor and Kennedy, and much more so than, for instance, Chief Justice Rehnquist and Justices Scalia and Thomas). On sexually themed speech, he has tended to be in the middle, often voting to protect it but often voting to allow some regulations (more than Justices Marshall, Brennan, Blackmun, and Stewart). On Free Exercise Clause religious exemption questions, he has largely joined the conservative and moderate conservative Justices (though Justice O'Connor split from Justice Kennedy and the more solid conservatives on this). Even on war against terror questions, he has been joined by the other moderate liberals, and in one leading case, Hamdi v. Rumsfeld, by Justice Scalia. Of course, if you're far enough left, Justices Kennedy and O'Connor would look ultraconservative, and if you're far enough right, Justices Stevens, Souter, Ginsburg, and Breyer would look ultraliberal. But that's why I suggest a bit of perspective -- a bit of looking using more objective standards (such as the makeup of the Court, the makeup of the country, or whatever else). And under those standards, Justice Stevens as a judge is a moderate liberal. (As a voter, he might still be more conservative, as he suggests in his interview with Jeff Rosen, but I can't speak with confidence about that.)