Self-Portrait in a Complex Mirror: Reflections on The Making of a Justice: Reflections on My First 94 Years by John Paul Stevens

Immediately after his death last year, Justice John Paul Stevens received a number of moving eulogies, several by former law clerks published in the Harvard Law Review, along with a tribute from Chief Justice Roberts.1.Memoriam: Justice John Paul Stevens, 133 Harv. L. Rev. 747 (2020).Show More Former law clerks—and I am one myself—must be given the latitude to reminisce about what they learned from their judge and what the judge’s contributions were. This Essay takes up a different task: to reflect on the man, the lawyer, and the judge as portrayed in his memoirs, The Making of a Justice: Reflections on My First 94 Years, published only months before he died at age ninety-nine. If the reflections in this Essay suffer from the distortions of hagiography, I hope they do so only to this extent: in observing that Justice Stevens does not need hagiography and would not have wanted it. On the contrary, he thought he could win any argument without fear or favor of any kind. And by the same token, he would have been completely confident of his account of his life and career. A comment by Paul Clement, a leading member of the Supreme Court bar, sets the tone for these reflections: Justice Stevens’s questions at oral argument were “[o]ften fatal; always kind.”2.Paul Clement, Justice Stevens at Oral Argument: Often Fatal; Always Kind, SCOTUSblog (July 19, 2019, 1:18 PM), https://www.scotusblog.com/2019/07/justice-stevens-at-oral-argument-often-fatal-always-kind/ [https://perma.cc/6ZBF-KH27].Show More

Such paradoxes lie at the center of Justice Stevens’s character and his career as a lawyer and a judge. He showed extraordinary independence in a branch of government and a profession immersed in rules. He had a keen sense of competition, evident outside of court in his pursuit of golf, tennis, and bridge. In his memoirs, he confesses to only a few errors in his many opinions as a judge, and he points repeatedly to cases in which the Supreme Court eventually came around to the position he first took in dissent.3.John Paul Stevens, The Making of a Justice: Reflections on My First 94 Years 147, 153–54, 199–200 (2019) [hereinafter The Making of a Justice] (decisions on gay rights, pregnancy discrimination, and sentencing in death penalty cases).Show More Yet he was known to be genial as well as generous in victory (which he much preferred) and in defeat (which he would rarely concede).4.Id. at 143 (conceding a mistake in one of five capital cases decided the same term).Show More He also had a fine sense of irony and a sharp sense of humor, notable for its telling and understated delivery. In a personal jurisdiction case, familiar mainly to experts in the arcana of civil procedure, the Court reached a unanimous result by way of several separate opinions. Justice Stevens agreed with the judgment in the case but not with the separate opinions, making clear his reservations in this footnote: “Perhaps the adage about hard cases making bad law should be revised to cover easy cases.”5.Burnham v. Superior Court, 495 U.S. 604, 640 n.* (1990) (Stevens, J., concurring in the judgment).Show More

Justice Stevens’s independence raises pointed questions: Independence from what? And with allegiance to what principles? No individual, let alone a lawyer or a judge, would admit to a lack of independence. So does Justice Stevens’s independence really distinguish him from others in the same profession? The answer is a matter of both degree and kind: in degree, in his enthusiasm for the back-and-forth of legal argument, and in kind, in his skill and affinity for “the artificial reason and judgment of law,” as Lord Chief Justice Coke put it in confronting James I over his royal prerogative to act as a judge.6.12 Edward Coke, Reports of Sir Edward Coke 65 (1738).Show More Justice Stevens was a lawyer’s lawyer in his facility and engagement with the dialectic of legal discourse. This accords with both his competitiveness and his genial irony. Legal advocacy is a winner-take-all sport. It requires a truly competitive spirit, yet at the same time a willingness to graciously accept defeat.

In genuinely hard cases, the kind that make it to the Supreme Court, lawyers and judges must accept something like a major league batter’s average—ideally .500, but realistically .300. They prevail in hard cases or on difficult issues about a third of the time. This figure holds for Justice Stevens, as assessed through his opinions. He wrote a record-breaking 628 dissents as compared to 398 opinions for a majority or a prevailing plurality, and for good measure, he also wrote 375 concurring opinions.7.Lee Epstein et al., The Supreme Court Compendium: Data, Decisions, and Developments 634 (6th ed. 2015).Show More It follows that a certain degree of humility is in order. This attitude might be hard to miss in Justice Stevens’s memoirs, which can be read as a history of arguments he won—or thought he should have won. To take this view, however, would be to discount Justice Stevens’s love of legal argument. As one of his former clerks, now Judge David Barron, observed: “Have you ever seen someone chuckle while reading a brief in a difficult case?”8.David Barron, Memoriam: Justice John Paul Stevens, 133 Harv. L. Rev. 747, 749 (2020).Show More

This Essay proceeds in three parts: first, in examining Justice Stevens’s personal and professional background and how that might have influenced his decisions as a judge; second, in accounting for the growing salience of the positions he took over his career; and third, in assessing the lessons from his long tenure as a Justice.

I. Individual and Family

Looking back over a life that extends to nearly a century, and over a career that was only a few decades shorter, requires continued adjustment of focus. Justice Stevens grew up in another era, one in which he could see Babe Ruth’s “called shot” before he hit a home run in the World Series.9.The Making of a Justice, supra note 3, at 17–18. He does admit to some uncertainty over where Ruth’s home run landed, which he resolved in favor of his initial recollection by looking at the box score for the game. Id.at 18.Show More He served with distinction in World War II and graduated from Northwestern University School of Law shortly after the war.10 10.Id.at 35–41, 53–59.Show More He then served as a law clerk for Justice Wiley Rutledge in the 1947 term of the Supreme Court.11 11.Id.at 61–68.Show More He returned to Chicago to practice law, focused upon antitrust cases, and returned only briefly to Washington to serve on the staff of the House Judiciary Committee.12 12.Id.at 69–92.Show More He was appointed to the U.S. Court of Appeals for the Seventh Circuit in 1970 and then to the Supreme Court in 1975.13 13.Id.at 107–10, 124–32.Show More

Justice Stevens established his reputation outside the antitrust field when he volunteered to serve, pro bono, as the general counsel to a commission investigating corruption in the Illinois Supreme Court.14 14.Id.at 101–06.Show More The commission, composed of practicing lawyers, was widely expected to exonerate the justices on the court, but Justice Stevens’s vigorous investigation corroborated the charges against two justices, who promptly resigned after the commission recommended that they do so. The investigation made Justice Stevens a prominent member of the Chicago bar, and soon after it concluded, Senator Charles Percy approached Justice Stevens about the possibility of appointment to the Seventh Circuit.15 15.Id.at 107–08.Show More The rest is history.

The smooth upward rise in his legal career might lead an observer to conclude that his personal life exemplified a similarly tranquil progression. This partly results from the illusion of a retrospective account of his career and partly from the evident satisfaction that Justice Stevens took in both his professional and his personal life. This mistake is understandable, but still a mistake. In his youth, his father was tried and convicted of financial fraud relating to the operation of the Stevens Hotel, which Justice Stevens’s family owned and managed. His father succeeded in having his conviction reversed on appeal a year after it was entered, but the entire process took a toll on the family, apparently contributing to a stroke suffered by Justice Stevens’s grandfather and the suicide of one of his uncles.16 16.Id.at 19–20, 24–25; see also Bill Barnhart & Gene Schlickman, John Paul Stevens: An Independent Life 34–35 (2010) (describing the “fresh humiliation” faced by the Stevens family even after their father’s verdict was overturned).Show More Justice Stevens’s father never recovered his financial position, experienced failure as a restaurateur, and later had only limited success as the owner of a resort in Wisconsin.

After he reached the Supreme Court, Justice Stevens faced other personal trials. His adopted son, John Joseph Stevens, served in Vietnam and then encountered difficulties in civilian life. He died prematurely from a brain tumor in 1996.17 17.Barnhart & Schlickman, supra note 16, at 139, 193, 252.Show More Earlier, in 1979, Justice Stevens divorced his first wife, Elizabeth, and immediately married his second wife, Maryan. She had been the wife in a couple who lived near the Stevens family in Chicago and socialized with them, including with the children.18 18.Id. at 220–22.Show More The lessons from his personal life do not yield determinate implications for his judicial career or, indeed, for his life as a whole. What they do show, along with his service in World War II, is that he was someone acquainted with the crises in human affairs and their profound effects on individual lives, including his own.

His practice as a lawyer in Chicago, and a Republican in the era of the Democratic Daley machine, also reveals his ambivalent status as an establishment figure who was nevertheless, in some respects, an outsider. He notes in his memoirs, with characteristic irony, that when he entered the practice of law, “the Republican Party was still the party of Abraham Lincoln.”19 19.The Making of a Justice, supra note 3, at 81.Show More Now, of course, Republicans of this persuasion are as scarce nationally as all Republicans were in Chicago during his time there. After he became a judge, Justice Stevens refused to reveal his political affiliation, and several of his former law clerks speculate that he would have resisted the label that he was the leader of the liberal wing of the Supreme Court.20 20.He is reported to have said, when asked about his political affiliation, “[t]hat’s the kind of issue I shouldn’t comment on, either in private or in public!” Jeffrey Rosen, The Dissenter, Justice John Paul Stevens, N.Y. Times Mag., Sept. 23, 2007, at 50; see also Christopher L. Eisgruber, Memoriam: Justice John Paul Stevens, 133 Harv. L. Rev. 747, 757–60 (2020) (commenting on Stevens’s possible reaction to being identified as “[l]eader of the Court’s liberal wing”); Eduardo M. Peñalver, Memoriam: Justice John Paul Stevens, 133 Harv. L. Rev. 747, 765 (2020) (discussing how Stevens identified as a Republican).Show More An accurate account of his judicial philosophy is so elusive partly because he was temperamentally averse to anything that resembled the party line.

II. The Evolution of a Justice

It is only a slight exaggeration to say that Justice Stevens moved from the center to the liberal wing of the Supreme Court without ever changing position. He did change position on issues such as affirmative action and capital punishment, moving away from disapproval of the first and approval of the second.21 21.He changed his mind about affirmative action, or at least his general attitude, if not his position on particular cases. The Making of a Justice, supra note 3, at 160–61, 175–76, 218–19, 259–60, 398–401. With respect to the death penalty, his position evolved from approval in some cases to disapproval in all. Id.at 141–44, 476–77.Show More But as Justice Stevens himself has noted, the Court changed around him more than he changed within it. Every Justice appointed during his time at the Court was more conservative than the Justice he or she replaced.22 22.Peñalver, supra note 20, at 765.Show More That change brought into greater relief the distinctiveness of his opinions and reasoning. When he challenged the old orthodoxy of the Warren and Burger Courts early in his career, his arguments mattered less to observers because that orthodoxy seemed so firmly established. As it has been systematically dismantled by the Rehnquist and Roberts Courts, the positions that he took appeared to be far more consequential. He ended his career challenging the emerging orthodoxy of originalism, textualism, and the primacy of rules over standards, and he invoked precedent more frequently to defend established doctrine as he saw it.

Tracing continuous themes in his career is a daunting task, made more daunting as his judicial record expanded over more than thirty-four years on the Court, and it has been augmented by the books he has published in retirement. The overall contours of his jurisprudence threaten to dissolve into a pointillist array of particular decisions and case-specific reasoning. General observations remain subject to qualifications, exceptions, and even refutation from the imposing number of opinions that he wrote, more than any other Justice in history. Hence, any attempt to identify principles and methods characteristic of his decisions has to be selective and by way of example rather than by an attempt to be comprehensive and definitive. This Essay therefore focuses on three opinions in which he took distinctive and noteworthy positions: Craig v. Boren,23 23.429 U.S. 190 (1976).Show More on sex discrimination and equal protection; Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.,24 24.467 U.S. 837 (1984).Show More on judicial review of administrative action; and District of Columbia v. Heller,25 25.554 U.S. 570 (2008).Show More on the right to bear arms under the Second Amendment.

Each of these opinions comes from a different era in Justice Stevens’s tenure as a Justice—early, middle, and late—and each has had varying degrees of influence—from indirect and implicit, to significant and canonical, to oppositional and dissenting. The following discussion takes them up in chronological order.

A. Craig v. Boren

This case concerned two Oklahoma statutes that prohibited the sale of 3.2% beer to young men aged eighteen to twenty, but not to women of the same age. The majority opinion, by Justice Brennan, applied a form of “intermediate scrutiny” to hold the statutes unconstitutional because they did not “serve important governmental objectives” and were not “substantially related to achievement of those objectives.”26 26.Craig, 429 U.S. at 197.Show More The statistical evidence marshalled by the state did not establish a sufficient relation between the discrimination against young men and the state’s legitimate interest in traffic safety. Several separate opinions, either concurring or dissenting, raised issues about the appropriate standard of review.27 27.Id. at 210 (Powell, J., concurring); id. at 215 (Stewart, J., concurring in the judgment); id. at 217 (Burger, C.J., dissenting); id. at 218–21 (Rehnquist, J., dissenting).Show More Justice Stevens wrote another concurring opinion where he roundly declared: “There is only one Equal Protection Clause. It requires every State to govern impartially. It does not direct the courts to apply one standard of review in some cases and a different standard in other cases.”28 28.Id.at 211–12 (Stevens, J., concurring).Show More The Equal Protection Clause, as he read it, did not divide cases into those triggering strict scrutiny, rational basis review, and intermediate scrutiny.

Adherents to the orthodox view of judicial review would find this claim to be heresy, as it was then and still is now. The only difference in constitutional doctrine since then has been the shift towards increased scrutiny of sex-based classifications from the standard applied in Craig v. Boren to the more exacting standard of United States v. Virginia, requiring “an exceedingly persuasive justification” for government action based on gender.29 29.518 U.S. 515, 531 (1996) (internal quotation marks omitted).Show More While Justice Stevens concurred in these later opinions, he never retreated from his skepticism over “tiers of scrutiny.” He was “still convinced that carefully analyzing in each case the reasons why a state enacts legislation treating different classes of its citizens differently is far wiser than applying a different level of scrutiny based on the class of persons subject to disparate treatment.”30 30.The Making of a Justice, supra note 3, at 155.Show More The reason for his skepticism has as much to do with the logic of equality as with text of the Constitution. Assuring equal treatment among persons does not obviously require different standards of review and, as Justice Stevens suggests, seems to preclude it.

Whatever the merits of this argument, it certainly has not proved to be persuasive. It has not attracted the agreement of any other Justice. The debate among the other Justices over standards of judicial review has, instead, taken place within the framework of different levels of scrutiny. Yet the paradox he has noted has not been resolved, and it reappears whenever a new basis of classification, such as sexual orientation, comes under constitutional attack.31 31.Lawrence v. Texas, 539 U.S. 558, 586 (2003) (Scalia, J., dissenting) (criticizing the majority’s holding that homosexual sodomy was protected by the Constitution without identifying the standard of review).Show More Justice Stevens’s failure to address such questions in terms of strict scrutiny might lead one to conclude that he was unsympathetic to novel claims of discrimination. The reverse, however, is true. On the particular issue of sexual orientation, in his very first term at the Court, he dissented from a summary affirmance of a decision upholding a criminal prohibition against sodomy,32 32.Doe v. Commonwealth’s Attorney, 425 U.S. 901 (1976) (voting to note probable jurisdiction for full briefing and oral argument).Show More as he did years later from a decision of the Court reaching the same conclusion on the merits,33 33.Bowers v. Hardwick, 478 U.S. 186, 218–20 (1986) (Stevens, J., dissenting).Show More and when the Court eventually overruled the latter decision, he joined the opinion doing so.34 34.Lawrence, 539 U.S. at 561.Show More

On the general issue of sex discrimination, as in Craig v. Boren, Justice Stevens nearly always voted to hold government action on the basis of sex unconstitutional. He did so in dissent from a decision upholding sex-based distinctions in defining statutory rape,35 35.Michael M. v. Superior Court, 450 U.S. 464, 496–502 (1981) (Stevens, J., dissenting).Show More as he did in joining the opinions for the Court that established an elevated standard of scrutiny for sex-based classifications.36 36.United States v. Virginia, 518 U.S. 515, 518, 531 (1996); J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 127, 136–37 (1994); Miss. Univ. for Women v. Hogan, 458 U.S. 718, 719, 724 (1982).Show More His refusal to frame the issue in terms of standards of review did not prevent him from reaching largely the same results. Occasional departures from this trend, as in his early vote to join in an opinion upholding a statute requiring only men to register for the draft37 37.Rostker v. Goldberg, 453 U.S. 57, 58 (1981).Show More or a late vote to join in an opinion upholding different standards for proof of paternity, rather than maternity, in immigration cases,38 38.Nguyen v. INS, 533 U.S. 53, 56 (2001).Show More stand out as exceptions based on very narrow grounds. These are, in the case of the draft, entirely superseded by the subsequent integration of women into all parts of the armed forces.39 39.Nat’l Coal. for Men v. Selective Serv. Sys., 355 F. Supp. 3d 568, 576–77 (S.D. Tex. 2019) (holding Rostker v. Goldberg not binding because of the expansion of women’s opportunities in the military).Show More

More prominent and more immediately influential was Justice Stevens’s insistence on a unitary approach to claims of sex discrimination under Title VII of the Civil Rights Act of 1964.40 40.Codified at 42 U.S.C. §§ 2000e et seq. (2012).Show More He treated these claims just like claims of race discrimination, subject only to the narrow exceptions in the statute for employment discrimination on grounds other than race. In an early decision, City of Los Angeles Department of Water & Power v. Manhart,41 41.435 U.S. 702 (1978).Show More he established what would soon become the dominant approach to sex discrimination under Title VII. His opinion held that an employer violated Title VII whenever it made a classification on the basis of sex that fell outside the exceptions found in the statute.42 42.Id. at 708–10.Show More In a dissent from an earlier decision, he had already applied this principle to classifications on the basis of pregnancy,43 43.Gen. Elec. Co. v. Gilbert, 429 U.S. 125, 161–62 (1976) (Stevens, J., dissenting).Show More and Congress soon amended Title VII to reach the result for which he had advocated.44 44.Pregnancy Discrimination Act, Pub. L. No. 95-555, 92 Stat. 2076 (1978), codified at 42 U.S.C. § 2000e(k) (2012).Show More He then elaborated upon it in an opinion that held, paradoxically, that male employees could be victims of pregnancy discrimination that restricted medical coverage for their wives.45 45.Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 682–85 (1983).Show More This opinion was then further extended by the Court to exclusions from employment based on a woman’s capacity to become pregnant.46 46.UAW v. Johnson Controls, Inc., 499 U.S. 187, 197–200 (1991).Show More The Court’s position became identical to his own.

Is there a contrast between the standard “to govern impartially” that Justice Stevens found in the Equal Protection Clause and the rule prohibiting almost all classifications on the basis of sex under Title VII? If any exists, it arises from the more specific and less abstract terms of the statute, which lends itself to interpretation as a rule. Even so, this rule of statutory interpretation admitted some classifications on the basis of sex beyond those covered by exceptions in the statute itself. For instance, Justice Stevens found a California statute requiring paid leave for pregnant employees, but not for prospective fathers, to be consistent with Title VII. He reasoned that it was “consistent with ‘accomplishing the goal that Congress designed Title VII to achieve.’”47 47.Cal. Fed. Sav. & Loan Ass’n v. Guerra, 479 U.S. 272, 294–95 (1987) (Stevens, J., concurring in part and concurring in the judgment) (quoting Steelworkers v. Weber, 443 U.S. 193, 204 (1979)).Show More Justice Stevens’s interpretation of Title VII did not have to overcome any established orthodoxy, unlike the different standards of judicial review under the Constitution. Justice Stevens took issue with the latter orthodoxy and continued to do so throughout his career and in his memoirs,48 48.The Making of a Justice, supra note 3, at 155.Show More even if he could not persuade his colleagues explicitly to depart from it.

B. Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.

Justice Stevens’s opinion for the Court in Chevron has likely received more citations than any other of his opinions. It is cited in nearly 17,000 judicial opinions and over 20,000 secondary sources.49 49.WestLaw Search for Citations to Chevron, WestLaw, https://1.next.westlaw.com/Search­/Home.html?transitionType=Default&contextData=(sc.Default) (enter “Chevron” into the search bar and select the “search” button; then inspect the “Content types” column on the left for the numbers of citations)(last visited Feb. 2020). Professor Thomas W. Merrill regards Chevron as “his most famous opinion.” Thomas W. Merrill, The Story of Chevron: The Making of an Accidental Landmark, in Administrative Law Stories 398, 420 (Peter L. Strauss ed., 2006).Show More By way of comparison, his decision upholding the exercise of the eminent domain power in Kelo v. City of New London,50 50.545 U.S. 469 (2005).Show More which he regards as the most unpopular of his career,51 51.The Making of a Justice, supra note 3, at 431.Show More has been cited in opinions just over 500 times and in secondary sources just under 6000 times.52 52.WestLaw Search for Citations to Kelo, WestLaw, https://1.next.westlaw.com/Search/­Home.html?transitionType=Default&contextData=(sc.Default) (enter “Kelo” into the search bar and select the “search” button; then inspect the “Content types” column on the left for the numbers of citations) (last visited Feb. 2020).Show More In administrative law, Chevron has become something of a world unto itself. Its holding appears in a paragraph that has been endlessly interpreted by courts and commentators:

When a court reviews an agency’s construction of the statute which it administers, it is confronted with two questions. First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.53 53.Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842–43 (1984) (footnotes omitted).Show More

In his memoirs, as in his opinions after Chevron, Justice Stevens went to some length to downplay its significance, emphasizing its continuity with prior decisions deferring to agency expertise and reserving to the courts the power to decide “pure question[s] of statutory construction.”54 54.Negusie v. Holder, 555 U.S. 511, 529–31 (2009) (Stevens, J., concurring in part and dissenting in part); INS v. Cardoza-Fonseca, 480 U.S. 421, 445–46 & n.29 (1987); see also The Making of a Justice, supra note 3, at 228 (“[T]he judiciary ‘must reject administrative constructions which are contrary to clear congressional intent.’” (quoting Chevron, 467 U.S. at 843 n.9)).Show More For him, there was no “Chevron revolution.”55 55.Gary Lawson, Federal Administrative Law 601 (8th ed. 2019) (“Was the Chevron revolution over before it actually began?”).Show More To the consternation of Justice Scalia, he departed from the orthodoxy that would have elevated the significance of his own opinion.56 56.Cardoza-Fonseca, 480 U.S. at 453–55 (Scalia, J., concurring in the judgment).Show More In its place, Justice Stevens relied on a disputable distinction between pure questions of law for the courts and questions of application of law to fact for the agencies, complicating the seemingly simple procedure endorsed in Chevron itself.57 57.Id. at 445–46 & n.29 (majority opinion).Show More As a consequence, he appears to have minimized the implications of one of his most influential decisions—and to be one of the few Justices in history to do so. His aversion to rigid rules of decision extended even to those derived from his own opinions.

The most fundamental objection to a broad view of Chevron goes to its deference to administrative agencies on questions of law. Under current doctrine, administrative agencies can essentially “say what the law is.”58 58.City of Arlington v. FCC, 133 S. Ct. 1863, 1880 (2013) (Roberts, C.J., dissenting).Show More This question has been, since Marbury v. Madison, traditionally thought to be “emphatically the province and duty of the judicial department.”59 59.Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).Show More A further objection follows from the provision in the Administrative Procedure Act that authorizes judicial review of “all relevant questions of law”60 60.5 U.S.C. § 706 (2012).Show More and from the historical practice of review of agency action by writ of mandamus.61 61.Aditya Bamzai, The Origins of Judicial Deference to Executive Interpretation, 126 Yale L.J. 908, 930–97 (2017).Show More Justice Stevens’s view of Chevron reduces the force of those objections, as compared to the usual understanding of the decision, by opening the door at the outset of the inquiry to judicial resolution of “pure question[s] of statutory construction.”62 62.Cardoza-Fonseca, 480 U.S. at 445–46 & n.29.Show More Still, if Chevron means anything, it leaves some questions of law for agency determination. Justice Stevens’s view of the decision does not eliminate all objections to it or put an end to the seemingly endless disputes over its proper interpretation.63 63.Gary Lawson, supra note 55, at 659, 689–92, 718–19, 735–46.Show More What it does illustrate is Justice Stevens’s preference for continuity and common sense over radical restructuring and formal inquiry.

In a revealing aside in his memoirs, Justice Stevens identifies Chevron as the only case in which he visited the chambers of another Justice to secure agreement with his draft opinion. He visited Justice Brennan to convince him to join the opinion for the Court, which made it unanimous.64 64.The Making of a Justice, supra note 3, at 205.Show More The need to secure another vote, when Justice Stevens already had a majority of five, does not seem obvious based on considerations internal to the opinion itself. Yet as an institutional matter, the Supreme Court was handicapped in deciding Chevron by the recusal of three Justices,65 65.Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 866 (1984) (Justices Marshall and Rehnquist took no part in the case. Justice O’Connor heard oral argument but took no part in the decision).Show More making any bare majority a fragile basis for guiding lower courts and administrative agencies. Concerns over continuity of precedent influenced both the opinion itself and the method of securing support for it.

Scholars of administrative law might well find Justice Stevens’s attempt to generate consensus ironic, as it resulted in a precedent that has since become an occasion for proliferating disputes. In addition to the issues mentioned earlier, it has generated disputes over the deference accorded to an agency’s interpretation of its own regulations66 66.Auer v. Robbins, 519 U.S. 452, 461–63 (1997).Show More and over the forms of agency interpretations, from regulations to positions taken in litigation, that deserve deference.67 67.United States v. Mead Corp., 533 U.S. 218, 229–34 (2001) (excluding deference to classification rulings by the Customs Service); Christensen v. Harris County, 529 U.S. 576, 587 (2000) (excluding deference to “interpretations contained in policy statements, agency manuals, and enforcement guidelines”).Show More A further limitation on the decision puts “question[s] of deep economic and political significance” beyond its scope.68 68.King v. Burwell, 135 S. Ct. 2480, 2488–89 (2015) (internal quotation marks omitted) (definition of allowable subsidies in health insurance exchanges).Show More It also does not apply to purely interpretive rules promulgated by an agency that Congress did not intend to have the force of law69 69.Gonzales v. Oregon, 546 U.S. 243, 268 (2006).Show More or when settled judicial interpretation has eliminated any ambiguity in a statute.70 70.United States v. Home Concrete & Supply, LLC, 566 U.S. 478, 487–90 (2012) (opinion of Breyer, J.); id. at 496 (Scalia, J., concurring in part and concurring in the judgment).Show More Instead of simplifying judicial review of administrative action, Chevron has resulted in the multiplication of doctrinal issues that limit or trigger its application. Perhaps the vast scale of the administrative state would have resulted in disputes over similar issues under different headings, but they now come under the heading of Chevron, limiting its scope and significance. If so, in another ironic twist, this development tends to support Justice Stevens’s view of the decision as a modest innovation on existing precedents.

C. District of Columbia v. Heller

Precedent figured far more prominently in Justice Stevens’s dissent from the Supreme Court’s reinvigoration of the Second Amendment as the source of individual rights to gun ownership, possession, and use. His opinion relied primarily on the authority of United States v. Miller,71 71.307 U.S. 174 (1939).Show More a decision from the 1930s that upheld a federal prohibition applicable to sawed-off shotguns. He fully endorsed the reasoning of that decision requiring that firearms protected by the Second Amendment must have “some reasonable relationship to the preservation or efficiency of a well regulated militia.”72 72.Id. at 178; see also District of Columbia v. Heller, 554 U.S. 570, 637 (2008) (Stevens, J., dissenting) (quoting language from Miller, 307 U.S. at 178).Show More Justice Scalia, writing for the Court, took issue with the breadth and soundness of Miller because that opinion says “[n]ot a word (not a word) about the history of the Second Amendment.”73 73.Heller, 554 U.S. at 624.Show More After his own lengthy review of the historical record, Justice Stevens found that Scalia offered “insufficient reason to disregard a unanimous opinion of this Court, upon which substantial reliance has been placed by legislators and citizens for nearly 70 years.”74 74.Id. at 679 (Stevens, J., dissenting).Show More

Debate has ensued over whether the difference between the two opinions arose from applying a common originalist methodology75 75.Nelson Lund, The Second Amendment, Heller, and Originalist Jurisprudence, 56 UCLA L. Rev. 1343, 1346 (2009) (“All nine members of the Heller Court began by accepting the foundation of originalist theory . . . .”).Show More or from contrasting originalism with adherence to precedent.76 76.Jamal Greene, Selling Originalism, 97 Geo. L.J. 657, 686 (2009) (interpreting the majority opinion as giving priority to originalism over precedent); J. Harvie Wilkinson III, Of Guns, Abortions, and the Unraveling Rule of Law, 95 Va. L. Rev. 253, 272–73 (2009) (criticizing the majority opinion for relying on originalist reasoning to create “a new substantive constitutional right that had not been recognized in over 200 years”).Show More To be sure, Justice Stevens felt the need to meet Scalia’s arguments from the historical record on their own terms, even though he believed Miller to provide an entirely sufficient basis for his dissent.77 77.The Making of a Justice, supra note 3, at 485.Show More He did not become an originalist by taking on originalist arguments. Indeed, his appeal to the historical record appears to be confirmed on a crucial issue in Heller: whether “the right to bear arms” in the Second Amendment was primarily understood at the time of its ratification in a military context. Scalia conceded that the phrase took on that meaning when it was used with the preposition “against,”78 78.Heller, 554 U.S. at 586.Show More as in “the right to bear arms against a foreign enemy.” More recent and more extensive searches of eighteenth-century texts reveal that the phrase was used most commonly in a military context.79 79.Darrell A.H. Miller, Owning Heller, 1 U. Fla. J.L. & Pub. Pol’y F. 1, 7–9 (2019).Show More A rigorous originalist, who would overrule precedents contrary to the common public meaning of constitutional language at the time of enactment, might well have doubts about the continued force of Heller itself as a precedent.80 80.Id.at 10–15.Show More

In his dissent, Justice Stevens did not appeal directly to public policy but to the need to give elected officials the power to make the policy judgments inherent in gun control legislation.81 81.Heller, 554 U.S. at 679–80 (Stevens, J., dissenting).Show More His memoirs, like his previous book, Six Amendments, are another matter. He “find[s] it incredible that policymakers in a democratic society have failed to impose more effective regulations on the ownership and use of firearms than they have.”82 82.The Making of a Justice, supra note 3, at 484; see also John Paul Stevens, Six Amendments: How and Why We Should Change the Constitution 174 (2014) [hereinafter Six Amendments] (proposing an amendment to the Second Amendment partly on this ground).Show More He also regrets that he did not emphasize the human costs of the decision in his conversations with fellow Justices.83 83.The Making of a Justice, supra note 3, at 485.Show More While the coincidence of his views on the policy issue and the constitutional issue is not surprising, the framing of his legal argument to turn decisively on precedent is revealing. His heavy reliance upon Miller was not an instance of looking into a crowd and seeing his friends. Miller was the only decision on point from the Supreme Court. His faith in precedent went hand-in-hand with his emphasis upon case-by-case adjudication.84 84.William D. Popkin, A Common Law Lawyer on the Supreme Court: The Opinions of Justice Stevens, 1989 Duke L.J. 1087, 1105–10.Show More

In this respect, he was a Burkean conservative, who could depart from precedent only if he understood all features of the past decision and all features of the present case. Incremental change for Edmund Burke was far superior to revolutionary transformations. As Burke said, “I must see with my own eyes, I must, in a manner, touch with my own hands, not only the fixed but the momentary circumstances, before I could venture to suggest any political project whatsoever.”85 85.Edmund Burke, Letter to a Member of the National Assembly, in IV The Writings and Speeches of Edmund Burke 43 (1901).Show More So too, Justice Stevens had to see and handle all the dimensions of a case or a precedent. This can prove maddening to anyone trying to extract general principles from his opinions, but it is an undeniable characteristic of his jurisprudence.86 86.Judge Alison J. Nathan, Memoriam: Justice John Paul Stevens, 133 Harv. L. Rev. 747, 753 (2020) (“[H]is judicial philosophy fundamentally defies categorization.”).Show More

While Justice Stevens was reluctant to overrule past decisions, he could readily distinguish them. For instance, in a case on sovereign immunity, Seminole Tribe v. Florida,87 87.517 U.S. 44, 84 (1996) (Stevens, J., dissenting).Show More he questioned the scope of a precedent that extended the Eleventh Amendment to suits by a citizen of a state against that citizen’s own state. He did not, however, see any need to overrule it because it did not, like Seminole Tribe, concern a claim under a federal statute.88 88.Id.at 84–93 (Stevens, J., dissenting) (refusing to apply immunity under Hans v. Louisiana, 134 U.S. 1 (1890), to claims under a federal statute).Show More Justice Stevens took the same position on the scope of the Eleventh Amendment in his book, Six Amendments, urging that the Amendment itself should be amended to make clear that it does not apply to claims under federal statutes or the Constitution.89 89.Six Amendments, supra note 82, at 146–47.Show More In a later case, Kimel v. Florida Board of Regents,90 90.528 U.S. 62, 92 (2000) (Stevens, J., dissenting in part and concurring in part).Show More he would have overruled Seminole Tribe, but on the ground that that decision itself did not respect precedent.91 91.Id. at 97–99 (Stevens, J., dissenting in part and concurring in part).Show More Whether or not one finds this intricate reasoning persuasive, it indicates the lengths to which he would go in order to preserve a semblance of continuity in the Court’s rulings.

This strategy had untoward consequences in Heller and in the ensuing decision in McDonald v. City of Chicago,92 92.561 U.S. 742 (2010).Show More which applied the Second Amendment to the states. The majority opinions in both cases have a decidedly anti-precedential undertone, arguing that the Second Amendment has not received the respect it deserves. The majority opinion in Heller concluded that “it is not the role of this Court to pronounce the Second Amendment extinct,”93 93.District of Columbia v. Heller, 554 U.S. 570, 636 (2008).Show More and the majority opinion in McDonald decided “whether the right to keep and bear arms is fundamental to our scheme of ordered liberty.”94 94.561 U.S. at 767.Show More The Court in McDonald also noted that a number of decisions selectively incorporating the Bill of Rights in the Fourteenth Amendment also overruled prior precedents.95 95.Id. at 763–66.Show More When overruling is the order of the day, an appeal to precedent can seem to be both futile and self-defeating.

That still leaves open the question of how a nonconformist, like Justice Stevens, could genuinely follow precedent. The answer goes back to an opinion early in his career. In Runyon v. McCrary,96 96.427 U.S. 160, 173 (1976).Show More the Supreme Court applied the Civil Rights Act of 186697 97.Codified at 42 U.S.C. § 1981 (2012).Show More to private discrimination, based on its earlier decision in Jones v. Alfred H. Mayer Co.98 98.392 U.S. 409, 420–21 (1968).Show More In a concurring opinion, Justice Stevens stated that his “conviction that Jones was wrongly decided is firm,” but that Jones accorded with the “policy of the Nation as formulated by the Congress in recent years.”99 99.Runyon, 427 U.S.at 190–91 (Stevens, J., concurring).Show More The statutory context favored the continued vitality of Jones even if it was wrongly decided in the first instance. By contrast, when the statutory or constitutional context of a prior decision had changed to its disadvantage, Justice Stevens favored overruling or drastically narrowing its scope, as he said in opinions in areas as different as maritime law and habeas corpus.100 100.Compare American Dredging Co. v. Miller, 510 U.S. 443, 458–62 (1994) (Stevens, J., concurring in part and concurring in the judgment) (preemption of state remedies for maritime workers), with Rasul v. Bush, 542 U.S. 466, 478–79 (2004) (jurisdiction of federal district court to issue writ of habeas corpus on behalf of prisoners held outside territory of district).Show More Precedent for him, perhaps more so than for most judges, enabled as much as it constrained his decision making. It provided the language of the law in which he framed his argument rather than dictating his decisions.

III. The Influence of an Iconoclast

Memoirs necessarily are a retrospective genre, looking back over an entire life and career. They invite the nostalgic thought that the author’s like will not be seen again. Of course, this is true. No veteran of World War II or a graduate from law school in the 1940s will be seen again on the Supreme Court. The more urgent question is whether conditions have so greatly changed that they leave no room for a Justice with the independence of mind that Justice Stevens displayed. It is, however, a question for the long term. It is not one that can be answered by a search for the acceptance of his views by a majority of Justices before his death. His memoirs could be read in this way, but scorekeeping along this dimension alone misses what was essential to his style of reasoning.

The justification for what he wrote in his many opinions was internal to the arguments he advanced, not external and dependent upon acceptance by others. An iconoclast, as he was in an insistent and understated way, does not expect to gain immediate agreement. Justice Stevens was not searching for the median position that would attract a majority of Justices. Anyone who spoke out against the established tiers of judicial review, as Justice Stevens did in Craig v. Boren, was not seeking consensus support for his views. Chevron might be taken to be an exceptional case in which Justice Stevens did seek consensus, but his minimalist interpretation of that decision represents a minority view. His attempt to confront originalism on its own terms in District of Columbia v. Heller hardly constitutes a concession to this influential method of constitutional interpretation. It instead rests on his refusal to depart from established precedent.

In offering his many separate dissents and concurrences, Justice Stevens did not expect to be vindicated by agreement. It is not that he was indifferent to the outcome in those cases. Even a cursory look at his dissents, for instance, in the cases in which he would have denied First Amendment protection for flag burning,101 101.United States v. Eichman, 496 U.S. 310, 323–24 (1990) (Stevens, J., dissenting); Texas v. Johnson, 491 U.S. 397, 438–39 (1989) (Stevens, J., dissenting).Show More demonstrates this conclusion to be deeply erroneous. He was by nature too serious and competitive to be indifferent. Otherwise, he would not have written his book, Six Amendments,102 102.Six Amendments, supra note 82, at 15–17.Show More arguing for changes to the Constitution to overrule several decisions, from most of which he dissented. The question elided by that book is whether he would have overruled those precedents once they had been handed down. Proposing amendments finessed this question and relieved him of the need to reveal how far he would depart from his general respect for precedent.

The hazards of a purely effects-based test for influence put skeptics of the reigning orthodoxy at a systematic disadvantage. It also invites a premature historical inquiry into the legacy of a Justice’s tenure at the Supreme Court. The evidence is not all in, even after a tenure and life as long as his. The vicissitudes of historical understanding, with each generation of historians offering an account that might be at odds with its predecessors, adds another dimension of uncertainty to the assessment of effects. Is Justice Story now regarded as highly as he was in the early nineteenth century, when he was well known as a prolific treatise writer and an influential professor at Harvard Law School, in addition to his role as a Justice of the Supreme Court?103 103.See R. Kent Newmyer, Supreme Court Justice Joseph Story: Statesman of the Old Republic 385 (1985) (“Even at Harvard Law School, the judge’s stature and relevancy declined with an uncharitable swiftness.”).Show More One hesitates to offer any simple, formulaic answer to such questions.

Our assessment now must be based on the integrity, originality, and soundness of Justice Stevens’s judicial record. Members of the legal profession would admire all these attributes of his decisions, even as they disagreed with him on the merits. One suspects that he would demand as much independence of judgment from them as he expected of himself. As Professor Olatunde Johnson wryly recounts of her clerkship with him: “We discussed the cases vigorously. He listened to us carefully and graciously; it often seemed hard to change his mind.”104 104.Olatunde C.A. Johnson, Memoriam: Justice John Paul Stevens, 133 Harv. L. Rev. 747, 762 (2020).Show More His legacy rests for the present on the example he set. It offers, within the legal profession, an alternative to the divisive politics that mark the current era. Whether it is an alternative that will be embraced or forsaken in American public life remains to be seen. His memoirs demonstrate exactly what is at stake in this choice.

  1. * John Barbee Minor Professor of Law, University of Virginia. I clerked for Justice Stevens in the 1975 term of the Supreme Court.

  2. Memoriam: Justice John Paul Stevens, 133 Harv. L. Rev. 747 (2020).
  3. Paul Clement, Justice Stevens at Oral Argument: Often Fatal; Always Kind, SCOTUSblog (July 19, 2019, 1:18 PM), https://www.scotusblog.com/2019/07/justice-stevens-at-oral-argument-often-fatal-always-kind/ [https://perma.cc/6ZBF-KH27].
  4. John Paul Stevens, The Making of a Justice: Reflections on My First 94 Years 147, 153–54, 199–200 (2019) [hereinafter The Making of a Justice] (decisions on gay rights, pregnancy discrimination, and sentencing in death penalty cases).
  5. Id. at 143 (conceding a mistake in one of five capital cases decided the same term).
  6. Burnham v. Superior Court, 495 U.S. 604, 640 n.* (1990) (Stevens, J., concurring in the judgment).
  7. 12 Edward Coke, Reports of Sir Edward Coke 65 (1738).
  8. Lee Epstein et al., The Supreme Court Compendium: Data, Decisions, and Developments 634 (6th ed. 2015).
  9. David Barron, Memoriam: Justice John Paul Stevens, 133 Harv. L. Rev. 747, 749 (2020).
  10. The Making of a Justice, supra note 3, at 17–18. He does admit to some uncertainty over where Ruth’s home run landed, which he resolved in favor of his initial recollection by looking at the box score for the game. Id. at 18.
  11. Id. at 35–41, 53–59.
  12. Id. at 61–68.
  13. Id. at 69–92.
  14. Id. at 107–10, 124–32.
  15. Id. at 101–06.
  16. Id. at 107–08.
  17. Id. at 19–20, 24–25; see also Bill Barnhart & Gene Schlickman, John Paul Stevens: An Independent Life 34–35 (2010) (describing the “fresh humiliation” faced by the Stevens family even after their father’s verdict was overturned).
  18. Barnhart & Schlickman, supra note 16, at 139, 193, 252.
  19. Id. at 220–22.
  20. The Making of a Justice, supra note 3, at 81.
  21. He is reported to have said, when asked about his political affiliation, “[t]hat’s the kind of issue I shouldn’t comment on, either in private or in public!” Jeffrey Rosen, The Dissenter, Justice John Paul Stevens, N.Y. Times Mag., Sept. 23, 2007, at 50; see also Christopher L. Eisgruber, Memoriam: Justice John Paul Stevens, 133 Harv. L. Rev. 747, 757–60 (2020) (commenting on Stevens’s possible reaction to being identified as “[l]eader of the Court’s liberal wing”); Eduardo M. Peñalver, Memoriam: Justice John Paul Stevens, 133 Harv. L. Rev. 747, 765 (2020) (discussing how Stevens identified as a Republican).
  22. He changed his mind about affirmative action, or at least his general attitude, if not his position on particular cases. The Making of a Justice, supra note 3, at 160–61, 175–76, 218–19, 259–60, 398–401. With respect to the death penalty, his position evolved from approval in some cases to disapproval in all. Id. at 141–44, 476–77.
  23. Peñalver, supra note 20, at 765.
  24. 429 U.S. 190 (1976).
  25. 467 U.S. 837 (1984).
  26. 554 U.S. 570 (2008).
  27. Craig, 429 U.S. at 197.
  28. Id. at 210 (Powell, J., concurring); id. at 215 (Stewart, J., concurring in the judgment); id. at 217 (Burger, C.J., dissenting); id. at 218–21 (Rehnquist, J., dissenting).
  29. Id. at 211–12 (Stevens, J., concurring).
  30. 518 U.S. 515, 531 (1996) (internal quotation marks omitted).
  31. The Making of a Justice, supra note 3, at 155.
  32. Lawrence v. Texas, 539 U.S. 558, 586 (2003) (Scalia, J., dissenting) (criticizing the majority’s holding that homosexual sodomy was protected by the Constitution without identifying the standard of review).
  33. Doe v. Commonwealth’s Attorney, 425 U.S. 901 (1976) (voting to note probable jurisdiction for full briefing and oral argument).
  34. Bowers v. Hardwick, 478 U.S. 186, 218–20 (1986) (Stevens, J., dissenting).
  35. Lawrence, 539 U.S. at 561.
  36. Michael M. v. Superior Court, 450 U.S. 464, 496–502 (1981) (Stevens, J., dissenting).
  37. United States v. Virginia, 518 U.S. 515, 518, 531 (1996); J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 127, 136–37 (1994); Miss. Univ. for Women v. Hogan, 458 U.S. 718, 719, 724 (1982).
  38. Rostker v. Goldberg, 453 U.S. 57, 58 (1981).
  39. Nguyen v. INS, 533 U.S. 53, 56 (2001).
  40. Nat’l Coal. for Men v. Selective Serv. Sys., 355 F. Supp. 3d 568, 576–77 (S.D. Tex. 2019) (holding Rostker v. Goldberg not binding because of the expansion of women’s opportunities in the military).
  41. Codified at 42 U.S.C. §§ 2000e et seq. (2012).
  42. 435 U.S. 702 (1978).
  43. Id. at 708–10.
  44. Gen. Elec. Co. v. Gilbert, 429 U.S. 125, 161–62 (1976) (Stevens, J., dissenting).
  45. Pregnancy Discrimination Act, Pub. L. No. 95-555, 92 Stat. 2076 (1978), codified at 42 U.S.C. § 2000e(k) (2012).
  46. Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 682–85 (1983).
  47. UAW v. Johnson Controls, Inc., 499 U.S. 187, 197–200 (1991).
  48. Cal. Fed. Sav. & Loan Ass’n v. Guerra, 479 U.S. 272, 294–95 (1987) (Stevens, J., concurring in part and concurring in the judgment) (quoting Steelworkers v. Weber, 443 U.S. 193, 204 (1979)).
  49. The Making of a Justice, supra note 3, at 155.
  50. WestLaw Search for Citations to Chevron, WestLaw, https://1.next.westlaw.com/Search­/Home.html?transitionType=Default&contextData=(sc.Default) (enter “Chevron” into the search bar and select the “search” button; then inspect the “Content types” column on the left for the numbers of citations) (last visited Feb. 2020). Professor Thomas W. Merrill regards Chevron as “his most famous opinion.” Thomas W. Merrill, The Story of Chevron: The Making of an Accidental Landmark, in Administrative Law Stories 398, 420 (Peter L. Strauss ed., 2006).
  51. 545 U.S. 469 (2005).
  52. The Making of a Justice, supra note 3, at 431.
  53. WestLaw Search for Citations to Kelo, WestLaw, https://1.next.westlaw.com/Search/­Home.html?transitionType=Default&contextData=(sc.Default) (enter “Kelo” into the search bar and select the “search” button; then inspect the “Content types” column on the left for the numbers of citations) (last visited Feb. 2020).
  54. Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842–43 (1984) (footnotes omitted).
  55. Negusie v. Holder, 555 U.S. 511, 529–31 (2009) (Stevens, J., concurring in part and dissenting in part); INS v. Cardoza-Fonseca, 480 U.S. 421, 445–46 & n.29 (1987); see also The Making of a Justice, supra note 3, at 228 (“[T]he judiciary ‘must reject administrative constructions which are contrary to clear congressional intent.’” (quoting Chevron, 467 U.S. at 843 n.9)).
  56. Gary Lawson, Federal Administrative Law 601 (8th ed. 2019) (“Was the Chevron revolution over before it actually began?”).
  57. Cardoza-Fonseca, 480 U.S. at 453–55 (Scalia, J., concurring in the judgment).
  58. Id. at 445–46 & n.29 (majority opinion).
  59. City of Arlington v. FCC, 133 S. Ct. 1863, 1880 (2013) (Roberts, C.J., dissenting).
  60. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).
  61. 5 U.S.C. § 706 (2012).
  62. Aditya Bamzai, The Origins of Judicial Deference to Executive Interpretation, 126 Yale L.J. 908, 930–97 (2017).
  63. Cardoza-Fonseca, 480 U.S. at 445–46 & n.29.
  64. Gary Lawson, supra note 55, at 659, 689–92, 718–19, 735–46.
  65. The Making of a Justice, supra note 3, at 205.
  66. Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 866 (1984) (Justices Marshall and Rehnquist took no part in the case. Justice O’Connor heard oral argument but took no part in the decision).
  67. Auer v. Robbins, 519 U.S. 452, 461–63 (1997).
  68. United States v. Mead Corp., 533 U.S. 218, 229–34 (2001) (excluding deference to classification rulings by the Customs Service); Christensen v. Harris County, 529 U.S. 576, 587 (2000) (excluding deference to “interpretations contained in policy statements, agency manuals, and enforcement guidelines”).
  69. King v. Burwell, 135 S. Ct. 2480, 2488–89 (2015) (internal quotation marks omitted) (definition of allowable subsidies in health insurance exchanges).
  70. Gonzales v. Oregon, 546 U.S. 243, 268 (2006).
  71. United States v. Home Concrete & Supply, LLC, 566 U.S. 478, 487–90 (2012) (opinion of Breyer, J.); id. at 496 (Scalia, J., concurring in part and concurring in the judgment).
  72. 307 U.S. 174 (1939).
  73. Id. at 178; see also District of Columbia v. Heller, 554 U.S. 570, 637 (2008) (Stevens, J., dissenting) (quoting language from Miller, 307 U.S. at 178).
  74. Heller, 554 U.S. at 624.
  75. Id. at 679 (Stevens, J., dissenting).
  76. Nelson Lund, The Second Amendment, Heller, and Originalist Jurisprudence, 56 UCLA L. Rev. 1343, 1346 (2009) (“All nine members of the Heller Court began by accepting the foundation of originalist theory . . . .”).
  77. Jamal Greene, Selling Originalism, 97 Geo. L.J. 657, 686 (2009) (interpreting the majority opinion as giving priority to originalism over precedent); J. Harvie Wilkinson III, Of Guns, Abortions, and the Unraveling Rule of Law, 95 Va. L. Rev. 253, 272–73 (2009) (criticizing the majority opinion for relying on originalist reasoning to create “a new substantive constitutional right that had not been recognized in over 200 years”).
  78. The Making of a Justice, supra note 3, at 485.
  79. Heller, 554 U.S. at 586.
  80. Darrell A.H. Miller, Owning Heller, 1 U. Fla. J.L. & Pub. Pol’y F. 1, 7–9 (2019).
  81. Id. at 10–15.
  82. Heller, 554 U.S. at 679–80 (Stevens, J., dissenting).
  83. The Making of a Justice, supra note 3, at 484; see also John Paul Stevens, Six Amendments: How and Why We Should Change the Constitution 174 (2014) [hereinafter Six Amendments] (proposing an amendment to the Second Amendment partly on this ground).
  84. The Making of a Justice, supra note 3, at 485.
  85. William D. Popkin, A Common Law Lawyer on the Supreme Court: The Opinions of Justice Stevens, 1989 Duke L.J. 1087, 1105–10.
  86. Edmund Burke, Letter to a Member of the National Assembly, in IV The Writings and Speeches of Edmund Burke 43 (1901).
  87. Judge Alison J. Nathan, Memoriam: Justice John Paul Stevens, 133 Harv. L. Rev. 747, 753 (2020) (“[H]is judicial philosophy fundamentally defies categorization.”).
  88. 517 U.S. 44, 84 (1996) (Stevens, J., dissenting).
  89. Id. at 84–93 (Stevens, J., dissenting) (refusing to apply immunity under Hans v. Louisiana, 134 U.S. 1 (1890), to claims under a federal statute).
  90. Six Amendments, supra note 82, at 146–47.
  91. 528 U.S. 62, 92 (2000) (Stevens, J., dissenting in part and concurring in part).
  92. Id. at 97–99 (Stevens, J., dissenting in part and concurring in part).
  93. 561 U.S. 742 (2010).
  94. District of Columbia v. Heller, 554 U.S. 570, 636 (2008).
  95. 561 U.S. at 767.
  96. Id. at 763–66.
  97. 427 U.S. 160, 173 (1976).
  98. Codified at 42 U.S.C. § 1981 (2012).
  99. 392 U.S. 409, 420–21 (1968).
  100. Runyon, 427 U.S. at 190–91 (Stevens, J., concurring).
  101. Compare American Dredging Co. v. Miller, 510 U.S. 443, 458–62 (1994) (Stevens, J., concurring in part and concurring in the judgment) (preemption of state remedies for maritime workers), with Rasul v. Bush, 542 U.S. 466, 478–79 (2004) (jurisdiction of federal district court to issue writ of habeas corpus on behalf of prisoners held outside territory of district).
  102. United States v. Eichman, 496 U.S. 310, 323–24 (1990) (Stevens, J., dissenting); Texas v. Johnson, 491 U.S. 397, 438–39 (1989) (Stevens, J., dissenting).
  103. Six Amendments, supra note 82, at 15–17.
  104. See R. Kent Newmyer, Supreme Court Justice Joseph Story: Statesman of the Old Republic 385 (1985) (“Even at Harvard Law School, the judge’s stature and relevancy declined with an uncharitable swiftness.”).
  105. Olatunde C.A. Johnson, Memoriam: Justice John Paul Stevens, 133 Harv. L. Rev. 747, 762 (2020).

The Rule of Recognition in Reconstruction: A Review of Secession on Trial: The Treason Prosecution of Jefferson Davis, By Cynthia Nicoletti

Introduction

In this book,[1] Professor Cynthia Nicoletti demonstrates, through an examination of the historical record that leaves no stone unturned, that secession remained an open question after the Civil War. Victory in the Civil War had established de facto Union authority over the former Confederate states, and had made the illegality of secession a foregone conclusion, at least in the eyes of almost all observers today.[2] Perceptions differed at the time, however, over the legal implications of military victory, and many prominent politicians, lawyers, and judges could not figure out how to translate de facto Union authority into the de jure illegality of secession.[3] Legal theory at the time did not have the resources to absorb the implications of “trial by battle” as a necessary element of the rule of law.

Nicoletti recounts all this in a dramatic account of the treason prosecution of Confederate President Jefferson Davis that proceeds simultaneously at two extremes: practical tactics in litigation and high principles of constitutional law. Delay, deception, and encoded communications with his client formed the core of Charles O’Conor’s strategy in defending Davis. Nicoletti brings O’Conor back to life as one of the leading lawyers of his generation, who nevertheless held irredeemably racist and secessionist views.

These views drew him to the defense of Davis, which he managed brilliantly, and, because of concerns about leaks to the prosecution, executed almost single-handedly.[4] Putting O’Conor’s reactionary politics to one side, his success in preventing the trial and conviction of the last leading Confederate to be apprehended by Union forces deserves grudging admiration for his skills as an advocate.

O’Conor did not lack for worthy opponents in the Davis litigation. William Evarts and Richard Henry Dana, among other leading attorneys, handled the prosecution and the political negotiations that attended the prosecution, such as the crucial decision to try Davis before the federal court in Richmond instead of before a military commission.[5] Issues such as those led directly to a multitude of constitutional questions, from technical questions about the proper venue for Davis’s trial to the fundamental question of the legality of secession.

Evarts and Dana were up to the task of addressing these momentous issues—Dana had argued The Prize Cases,[6] which also concerned the status of the Confederate states during the Civil War—but they were trapped by the prospect that a jury in Richmond would acquit Davis on the ground, avowed or not, that he did not commit treason because secession was legal. They feared a jury would find Davis could not have committed treason against the United States because he did not “owe allegiance” to the United States after his home state, Mississippi, seceded from the Union.

At the level of constitutional principle, Nicoletti engages with the dilemma the lawyers faced in attempting to reconcile the rule of law with the verdict of the Civil War. Modern lawyers and legal theorists do not find this dilemma as intense as their predecessors in Reconstruction did. It might just be that the distance of time has foreshortened our view, collapsing the years of constitutional uncertainty between General Robert E. Lee’s surrender at Appomattox Courthouse and the Supreme Court’s pronouncement in Texas v. White that “[t]he Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States.”[7] The resolution of the great question of secession through “trial by battle” seems to amount to simple, unproblematic realism today. Nicoletti dispels any such anachronistic attribution of views prevalent today to actors a century and a half ago—they were deeply troubled that the settlement of the question of secession by the outcome of the Civil War “destabilized the rule of law in the United States.”[8]

Yet her book raises a nagging doubt. Maybe the lawyers and legal theorists then were wrong in insisting upon an irreconcilable conflict between the rule of law and trial by battle. They did not fully appreciate how the first is possible only because of the second: the rule of law presupposes a legal system embedded in and dependent upon social facts and political structure.        In particular, the dominant modern form of legal positivism, derived from the work of Professor H.L.A. Hart, places a social “rule of recognition” at the foundation of any legal system and makes it the basis from which all other legal norms, including constitutional principles, are derived.[9] Although Hart’s view has been revised by later positivists, two central tenets of his theory have remained intact: first, that law has its foundation in customary practice; and second, that customary practice consists (1) in prevailing acceptance of the rule of recognition by government officials and (2) in obedience to the resulting regime of legal rules by the population at large.’’[10]

Variations on modern positivism, including some made by Hart himself, differ over how much the rule of recognition incorporates morality, what the precise content of the rule of recognition is, and how it identifies the other rules in a legal system.[11] Nevertheless, any of these variations has the same implications for the legal dilemma of secession after the Civil War: if the war changed the rule of recognition to take secession off the table, then constitutional doctrine had to change accordingly. The question is how changes in the rule of recognition altered constitutional law.

Some of the light cast by modern legal positivism on this issue might reflect harshly on the rule of recognition itself and, specifically, how well it identifies the other rules in a legal system.[12] Nevertheless, these problems pale in comparison to the problems with the reasoning in Texas v. White. The opinion, handed down by the Supreme Court in 1868, does not contain much in the way of reasoning to support its resounding pronouncement of “an indestructible Union, composed of indestructible States.”[13] It relies on the Articles of Confederation to support the premise that the Union originally was declared to be “permanent”[14] and then was made “more perfect” by the Preamble to the Constitution.[15] The opinion simply ignores the fact that the Constitution took effect contrary to the terms of the Articles, which required unanimity among the states for any amendment,[16] because the Constitution required approval of only nine of the original thirteen states to supersede the Articles.[17] The Court’s own reasoning calls attention to the fact that the Union in the Articles was not permanent at all, but expired with the ratification of the Constitution. This solecism might have been forgiven in a political speech, as it was when Lincoln made virtually the same argument in his First Inaugural Address.[18] But it deeply mars any judicial opinion attempting to restate the fundamental principles of constitutional law.

Dissatisfaction with this flawed reasoning has led many commentators, both then and now, to seek better reasoning.[19] This effort has not been successful. Appealing simply to the verdict of “trial by battle,” without articulating its consequences for legal doctrine, begs the question: how can the fact of military victory change the principles upon which the rule of law relies?

Appealing only to the adoption of the Thirteenth, Fourteenth, and Fifteenth Amendment ignores the problematic process by which they were adopted. The Amendments were approved by sessions of Congress that did not seat legislators from the former Confederate states and that forced those states to ratify the amendments as a condition of regaining their seats. Apart from the obviously coercive nature of this process, it also denied the former Confederate states equal status as states in the Union.

On the dominant Republican view in Reconstruction, the former Confederate states had always remained in the Union and yet because of attempted secession could be denied equal participation in approving the new Amendments to the Constitution.[20] Although the process of proposing and ratifying those Amendments nominally conformed to Article V of the Constitution, it depended upon coercion exercised against the former Confederate states. An alternative view that conceives of the Confederate states as “conquered provinces,” equivalent to the territory of conquered foreign nations, presupposes that those states were successful in leaving the Union. This view justifies Military Reconstruction but at the cost of abandoning the Union’s opposition to secession throughout the Civil War.[21] Holding to the view that Confederate states committed “state suicide” leads to a similar contradiction with Republican principles—that those states and their votes had to be counted in the ratification of the Reconstruction amendments. Without being readmitted to the Union, how could states that discontinued their existence be counted in the ratification process?

Modern commentators have fared no better than their predecessors in the nineteenth century in trying to cut the Gordian knot of the status of the former Confederate states. Some revert simply to the acceptance of “trial by battle” as the agent of constitutional change.[22] But even accepting this premise, this explanation leaves out any account of precisely how military victory and political coercion led to constitutional change. What was the mechanism by which events outside the legal system could result in changes in legal doctrine within it? So, too, the attempt by Professor Bruce Ackerman to assimilate political and legal developments in Reconstruction to a process analogous to constitutional amendment leaves out how the particular decisive event he identifies—President Andrew Johnson’s resounding loss in the congressional election of 1866—could be analogized to approval by two-thirds of each house in Congress and ratification by three-quarters of the states.[23] To be sure, the election of 1866 set the stage for ratification of the Fourteenth and Fifteenth Amendments, but the Thirteenth Amendment had been ratified before the election, and under similarly coercive terms. At the time, only a few of the Confederate states were represented in Congress and those who were not represented were forced to ratify the amendment as a condition of regaining their seats.[24]

Three features of that era demand explanation: first, why the illegality of state secession became a foregone conclusion without being articulated in a canonical source of law; second, why it took nearly four years for this conclusion to become accepted in formal law; and third, why the opinion that accomplished this acceptance, Texas v. White, did so in such poorly reasoned fashion.

The answers to these questions from a legal positivist perspective follow directly from the central role of the rule of recognition as a social practice. First, a social practice has an inchoate, uncertain character, far divorced from the artificial certainty of legal doctrine. Second, it takes some time to resolve uncertainty in the rule of recognition by changing legal doctrine. This requires a mixed process that gradually moves from a social practice distinct from law to rules accepted and articulated by the officials of a legal system, primarily judges, but other officials and citizens as well. And third, an opinion accepting changes in the rule of recognition succeeds only by success—by its acceptance going forward rather than its justification looking backward. Such a prospective take on Texas v. White does far more to explain its efficacy than a retrospective analysis of the unstable reasoning offered in the opinion itself. This essay proceeds in three parts corresponding to these three questions and the answers to them.

I. The Rule of Recognition as a Social Practice

Ever since its publication over 50 years ago, The Concept of Law has dominated discussions in Anglo-American jurisprudence, as much in renewing the tradition of legal positivism as in generating disputes over it. That discussion has focused largely on the rule of recognition as the basis for a legal system in social fact rather than in freestanding natural law. For Hart, “the rule of recognition exists only as a complex, but normally concordant, practice of the courts, officials, and private persons in identifying the law by reference to certain criteria. Its existence is a matter of fact.”[25] The fact of the rule’s existence breaks down into two components: first, that “the laws which are valid by the system’s tests of validity are obeyed by the bulk of the population,” and second, that there is “a unified or shared official acceptance of the rule of recognition.”[26] Debate has swirled over each of these elements, and as noted earlier, also over whether the content of the rule of recognition does or must incorporate moral standards and values.[27]

The factual nature of the rule of recognition has largely escaped controversy, however. Even those who assign a large role to political morality in identifying the valid laws of a legal system maintain that the ultimate test for validity depends, at least in part, on the social fact of an existing practice.[28] Only strict natural law theorists and followers of Professor Hans Kelsen give no role at all to social practices at the foundation of a legal system. Kelsen, in particular, reduces the role of the rule of recognition to a mere presupposition, which need not be accepted by anyone; it need only serve as a hypothetical “basic norm” that would provide a test for validity for all the other norms in a legal system if it were accepted.[29]

Strict natural law theorists make law depend upon the requirements of morality, again, whether or not they are actually accepted in a society.[30] Virtually all other philosophers agree with Hart in assigning a factual dimension to the rule of recognition or its equivalent.[31] They make the other norms of a legal system dependent upon a matter of social fact, and as social fact changes, so do the legal norms that it recognizes as valid.

If the legal theorists are right in following Hart, then they have provided a ready explanation for a conundrum that has troubled constitutional theorists, especially in accounting for the questionable process that led to the ratification of the Reconstruction amendments. They can get around the problems posed by the process of ratification of the Reconstruction amendments, and the related difficulties with the opinion in Texas v. White, simply by categorizing the fundamental changes in the American constitutional structure wrought by the Civil War and Reconstruction as resolving a dispute over the rule of recognition—the social practices of American society—not changes in constitutional law alone.

Before the war, secession could be supported by the compact theory of the Union, which gave the states the right to secede in the same way that an independent nation could withdraw from a treaty. The opposing nationalist theory derived the powers of the Union directly from the people, independent of the states and their continued allegiance. The Civil War resolved this dispute over state power under the rule of recognition, and constitutional law had to change accordingly.

Some might object that the Constitution is, by its own terms, the rule of recognition of the American legal system. It does declare itself in Article VI to be “the supreme Law of the Land,”[32] but that provision more plausibly makes the Constitution supreme over other conventional sources of law than transforms it into a rule of recognition. The latter alternative would beg the question where the authority for Article VI (and the rest of the Constitution) comes from. The widely accepted answer to that question rests the original Constitution on a delegation of power from the people acting through state conventions.[33] The Tenth Amendment accepts this point in reserving the “powers not delegated to the United States by the Constitution, nor prohibited by it to the States, . . . to the States respectively, or to the people.”[34] This basic principle of American federalism requires that the Constitution cannot be the whole of the rule of recognition. But if it is only part, then it must be reconciled with the other elements of the rule of recognition, leading to the conclusion that some superior source of law reconciles all the constitutional and non-constitutional elements of the rule of recognition. The incompleteness of the Constitution takes on other forms as well, most obviously in leaving open fundamental questions of interpretation, like the legality of secession.

For these reasons (among others that could be multiplied), most constitutional theorists treat the fundamental law in a legal system as a political act, which cannot be judged by the ordinary standards of legal validity.[35] In this respect they agree with Hart in treating the existence of the rule of recognition as a social fact (albeit by another name). Nor do they disagree with Hart’s analysis of this social fact as a combination of acceptance by public officials and compliance with the resulting regime by the people as a whole. Most theorists view constitutional law as embedded in and derived from social practice with superior authority over standard sources of legal doctrine.[36] Where they might balk is in resorting to the rule of recognition, or its equivalent, to decide hard questions of constitutional law. “Here,” Hart maintains, “all that succeeds is success.”[37] Appealing to the rule of recognition might offer an all-too-easy way around the text of the Constitution, established precedent, and other standard sources of law.

Such an evasion of orthodox legal reasoning appears all the more problematic because of the amorphous nature of the rule of recognition. Attempts to formulate the rule of recognition for the American legal system, even in schematic form, have foundered over the difficulty of capturing the dividing line between the powers reserved to the states and the people and those delegated to the federal government. The rule of recognition, as noted earlier, must provide for both.[38] The search, however, for the canonical form of the rule of recognition underestimates the degree to which it is generated by social practice. Just as isolated instances of customary law can be identified and debated in the absence of a comprehensive account of their source, the same could be true of the rule of recognition. In the case of secession, we could say that the rule of recognition left open the legality of secession in antebellum law and that it was altered after the Civil War to close off this question.

Some might still object that this claim cannot be fully understood or analyzed apart from a complete restatement of the rule of recognition. Yet desirable as a comprehensive account of the rule of recognition might be, it is not strictly necessary. The crucial features of the rule of recognition for one question might have little to do with its features bearing on another. Insofar as it legitimizes judicial review, for instance, the rule of recognition has little to say about how that power should be exercised to determine the legality of secession. In fact, the real problems arise from the translation of the rule, based on custom and practice, into the formalities of legal doctrine. This process, as we shall see in the next section, involves both the need for official acceptance of the rule and drawing out the implications of the rule for ordinary sources of law, such as the decision in Texas v. White.

II. Resolving Disputes Over the Rule of Recognition

Hart characterized the rule of recognition as one that imposed a duty on government officials to follow the lawmaking process and the sources of law that it identified.[39] Scholars have subsequently questioned whether duty alone can fill the gap between the rule of recognition and legal doctrine, arguing that legal power to change the law must also be conferred on government officials to give the legal system the flexibility it needs as a union of primary rules of conduct and secondary rules of change.[40] However this debate is resolved, it does point to the need to draw out the implications of the rule of recognition for conventional sources of law, if only to confirm that government officials actually accept the rule. If they did not, then the changed rule would not meet the first of the two conditions for its existence. Legal officials, and particularly judges, signal their acceptance of the rule through official statements of legal doctrine.

The process of clarifying the rule of recognition therefore becomes intertwined with changes in the law authorized by the rule. Whether this process proves to be successful is, so to speak, a mixed question of law and fact. Clarifying the rule of recognition without any consequences for ordinary sources of law would be entirely pointless. It would not support any new understanding of the rules of the legal system.

Even without Texas v. White, the illegality of secession plainly was presupposed by the provisions of the Fourteenth Amendment requiring congressional approval of any pardon to former government officials who “engaged in insurrection or rebellion” against the United States,[41] and invalidating “any debt or obligation incurred in aid of insurrection or rebellion against the United States.”[42] Changes in the rule of recognition, or clarification of its terms, must become manifest in standard sources of law, even if judges and other public officials do not candidly articulate exactly how, or why, the rule has changed.

It follows that the standard sources do not provide a completely sound foundation for judicial decisions resolving disputes over the rule of recognition. If they did, the dispute would only be over a subordinate source of law derived from the rule of recognition. In Reconstruction, existing constitutional provisions and constitutional decisions did not even provide a completely sound foundation for the Reconstruction Amendments, as demonstrated by the irregularities in the process of adopting those Amendments.[43] Justification for a decision clarifying the rule of recognition, as Hart emphasized, must look forward to acceptance rather than backward towards preexisting sources of law.[44] If the prospective and retrospective views generally coincided, there would be no dispute over the rule to be resolved. Presenting a prospective resolution as the result of a retrospective justification, as judicial opinions commonly do, cannot be taken as confirmation that no change in the rule to clarify its terms occurred. On the contrary, the rhetoric of continuity with the past often has been employed to promote acceptance of changes going forward.[45]

The susceptibility of judges to this rhetorical strategy explains the notorious gaps in the reasoning in Texas v. White. Foremost among them is the glaring inconsistency between relying on the Articles of Confederation, which established a “perpetual union” and required a unanimous vote among the states for amendment,[46] and the Constitution, which declared a “more perfect Union,”[47] but required ratification by only nine states to go into effect (and similarly required ratification of subsequent amendments by only three quarters of the states).[48] Other defects can be added, such as the reliance on the Preamble to the Constitution for the phrase “more perfect Union” instead of some operative provision in the Constitution.[49] Many commentators have also criticized the opinion for distinguishing between the existence of a state and the existence of a government “competent to represent the State in its relations with the National Government.”[50] This distinction raises the possibility that a state can continue to exist without an appropriate government, and indeed, this is how the Court characterized the status of Texas during the Civil War. In name, it remained a state in the Union, but without the rights and powers of the states not in rebellion. “All admit that, during this condition of civil war, the rights of the State as a member, and of her people as citizens of the Union, were suspended.”[51] Yet if Texas could remain a state without a lawful government, presumably it could remain a state without any government at all—even if it descended into anarchy. This reasoning presses far beyond the usual understanding of a “state” as an organized government exercising sovereignty over identified territory and the population within it.[52] The Court just deletes the element of a government from the ordinary conception of a state.

These familiar objections to the reasoning in Texas v. White did nothing, however, to impair the authority of the opinion’s pronouncement on the indestructibility of the states and the union. Nor should they have. We should not expect airtight arguments for changes in the law that jettison potentially valid legal arguments based on previously accepted legal authority. If the Civil War made the illegality of secession a foregone conclusion, then it effectively erased the previous basis for secession in accepted legal sources. It swept those arguments off the table, so much so that the Court in Texas v. White asserted it need not address the legality of secession “at length.”[53] Likewise, the defendants’ argument turned “entirely upon the validity of the possession of the bonds” by the third-party purchaser.[54] The Court did not focus upon the question of secession, largely because it could not—because any significant dispute over the rule of recognition, by definition, opens up a gap with preexisting law and erodes the reliability of preexisting legal sources. Those sources that do not support the resolution of the dispute simply are ignored or misconstrued. The Court employed both strategies in Texas v. White.

The compact theory of the Constitution, in which the states entered into it as sovereigns with the right to withdraw, simply received no attention from the Court. Yet if the outcome of the Civil War swept such arguments off the table, it left on the table many of the components of the antebellum constitutional order, especially the continued sovereignty of the states. For reasons mentioned earlier, state sovereignty could not easily be reconciled with the exigencies of Reconstruction.

That became clear as the Supreme Court repeatedly refused to decide the merits of the legality of secession or the constitutionality of Reconstruction. Those cases, like the high-profile prosecution of Jefferson Davis, created the risk of detracting from rather than adding to acceptance of the consequences of Union victory. However those cases were decided, they would either give a victory to southern opponents of Reconstruction or diminish northern support by departing from the rule of law. Instead the Court settled for a series of opaque rulings whose meaning and significance are still debated today.[55] By contrast, Texas v. White sent a much clearer signal, even if it was based on much weaker legal reasoning.

III. Consequences as Justification

As Nicoletti documents in detail, critics of the opinion in Texas v. White, beginning with Justice Grier’s dissent, attributed the defects in the opinion to the Court’s failure to candidly acknowledge the verdict of trial by battle.[56] The opinion did not, on this view, make a virtue of necessity by admitting that it could not find the resources for its decision in existing legal doctrine, but instead showed its willingness to have its virtue all too easily compromised.

The Court papered over gaps in the law in a semblance of conventional legal reasoning. It did not admit that it was changing legal doctrine, apparently out of fear that candor would impede its success in accomplishing any change.[57] On this view, simply characterizing the Court’s reasoning in modern positivist terms as resolving a dispute over the rule of recognition does little to dispel doubts about it.

A sustained analysis under the rule of recognition, however, leads to the opposite conclusion: that the rule of law, so far from being inconsistent with trial by battle, depended upon it as the foundation for a new constitutional settlement. On this interpretation, the opinion in Texas v. White implicitly acknowledged the changed social and political context of constitutional law after the Civil War and promoted acceptance of that change as a necessary element of altering the rule of recognition and drawing out its implications for legal doctrine.

The widely criticized[58] deficiencies in the opinion result from a retrospective look at its basis in conventional legal sources, when a correct appreciation of the decision requires a prospective examination of its consequences. Relying on the Articles of Confederation hardly supports interpretation of the Constitution, when it was the latter that unceremoniously displaced the former. An attempt to clarify the rule of recognition must be aimed at securing widespread official acceptance and popular obedience, which is what actually resulted from Texas v. White. The opinion was itself part of the process of changing the rule. Despite objections to its reasoning, it elicited no widespread reaction that prevented it from becoming the canonical statement of state and national sovereignty.[59]

The absence of objections partly resulted from the relative obscurity of the merits of the dispute, which concerned the rights of private individuals who had purchased United States bonds from Texas during the Civil War.[60] That issue would have been of interest to investors who held government bonds and who might have been seriously worried about their rights to bonds that they purchased on the open market. The holding on this issue put indirect purchasers of bonds in the position of those who had purchased their bonds directly from Texas, because the bonds had become due during the Civil War. These holders were plainly on notice that the bonds were sold to finance the secessionist government of Texas and that the sale could be invalidated for that reason.

During the War, according to the Court, the secessionist government lacked the authority to sell bonds in furtherance of the Confederate war effort.[61] But the Court reasoned that because the bonds were then mature, the indirect purchasers could not invoke the good faith purchaser rule that typically protected other holders of negotiable instruments; they could not insulate their indirect purchases from the invalidity of the initial direct purchase sale of the bonds from Texas.[62]

All this sounds—and is—highly convoluted and it bears only a distant relationship to the jurisdictional holding that Texas, through its reconstructed government, could invoke the original jurisdiction of the Supreme Court.[63] Strictly speaking, the jurisdictional holding did not require the Court to opine on the existence of “an indestructible Union, composed of indestructible States.” The Court could simply have held that, regardless of the status of Texas during the Civil War, it had the status of a state by reason of its reconstructed government after the war. It was only then that Texas brought this case against the bondholders. That conclusion was entirely consistent with the holding on the merits that the secessionist government of Texas lacked authority to sell the bonds in furtherance of the Confederate war effort.

Curiously, however, the holding that relegated good faith purchasers to the status of direct purchasers was subject to “grave doubt” within six years and explicitly overruled ten years later.[64] Undermining the good-faith purchaser rule evidently caused greater concern than rejecting the arguments for secession in a poorly reasoned dictum. The survival of the dictum seems to have resulted from the obscurity of the merits. Participants in the market for United States bonds no doubt worried more about erosion of the good-faith purchaser rule than the illegality of secession.

The immediate implications of the case soon became divorced from the dictum on secession, which has since had a successful career as an established principle of constitutional law.[65] Doubts about the logic of the opinion, although voiced repeatedly over the years, never led to questions about the validity of the dictum, which soon acquired a life of its own.

The afterlife of Texas v. White conforms quite closely to Hart’s account of how resolution of uncertainty in the rule of recognition takes hold and becomes integral to a legal system. It does not, however, indicate that the process is instantaneous or free from the contingencies characteristic of any significant change in the law.

Reducing uncertainty in the rule of recognition as a social practice by altering determinate legal rules requires more than logical deduction. The guiding force of the rule of recognition might become ever more attenuated as the needed changes reach ever further into the intricacies of the legal system. At such a distance, it might not guide judges to the dispositive sources in standard legal sources. The rule of recognition does not operate as simply or as directly as Hart’s original account of the rule suggests.[66] Although emphasized by critics of Hart, the complexity of the rule of recognition does not detract from the central insight behind the rule: that it locates the ultimate authority of law in social and political facts. Those facts, although distinct from legal doctrine, nevertheless depend upon it because it constitutes the means for gaining official acceptance and popular obedience to changes in the rule of recognition, which are the conditions for its continued existence.

The interdependence of the rule of recognition and the legal rules derived from it enhances, rather than detracts from, the role of decisions based directly on the rule of recognition without the benefit of intermediate sources of ordinary law. Such decisions do not simply draw out the implications of a clarified rule of recognition; they also promote acceptance of the changes implicit in clarifying the rule.

This dual role does more than excuse the weak reasoning in Texas v. White. It also explains the overt political appeal in the opinion, most obviously in adopting the argument for perpetual union from Lincoln’s First Inaugural Address.[67] That address constitutes the canonical statement of the mainstream Republican justification for fighting the Civil War. The opinion departs from the First Inaugural Address, as it had to do, in referring to state sovereignty only in the most abstract way. In a vain effort to avert the Civil War, Lincoln much more specifically conceded state sovereignty over slavery.[68] That concession disappeared as the Civil War turned into a war of emancipation in addition to one to preserve the Union. After the war, Chief Justice Chase could refer to state sovereignty only in an abstract and conclusory reference to “indestructible States.”[69]

The balance struck in the opinion between “an indestructible Union” and “indestructible States” appears to modern eyes to be a nearly inscrutable reference to all the issues of federalism that have animated constitutional law and politics in this country. At the time, however, it solidified the status of the Reconstruction amendments, which presupposed that the former Confederate states continued to be states in the Union. Yet it did not cast doubt upon Military Reconstruction, so long as the federal occupation of the South did not purport to destroy the southern states.[70] The dictum allowed the Court to continue to equivocate and evade the constitutionality of Reconstruction, which was essential to exacting compliance in the South with the new regime established by the victory of the North. Mixed though the results of Reconstruction were,[71] it would not have achieved even limited success if it had been declared unconstitutional. The abstract compromise formulated in Texas v. White was an offer that neither side could wholly refuse.

Another feature of the opinion that turns vice into virtue is the seemingly illogical distinction between a state and its government. The Court ruled in favor of a partially reconstructed southern government, reasoning that its efforts to return to normal relations with the Union were enough to allow it invoke the Court’s original jurisdiction.[72] Moreover, those same efforts distinguished it from the prior secessionist government, whose acts in selling the bonds were invalid because they were in aid of the Confederate war effort. Although the basis for the distinction in political and legal theory might be elusive, its impact in Texas v. White was tangible and immediate. It allowed the State to prevail on both the jurisdictional issue and on the merits,[73] and in the process defused any practical objection to the decision. By 1868, most of the former Confederate states were deemed entitled to representation in Congress although four, including Texas, were readmitted in 1870.[74]

In this respect, and in several others, the decision in Texas v. White bears an uncanny resemblance to Marbury v. Madison.[75] Just as President Jefferson could not object to the assertion of the power of judicial review in the earlier case, because his position had prevailed on the merits,[76] so too, the former Confederate states could not object to the result in the later case. Likewise, both decisions turned on the arcane issue of the original jurisdiction of the Supreme Court, most of whose power lies in its appellate jurisdiction.[77] And both decisions twisted the original jurisdiction around from a straightforward reading of the statute, in Marbury v. Madison, purporting to confer such jurisdiction, and of the Constitution, in Texas v. White, in conferring jurisdiction over claims by the states. A state, according to the decision, could take advantage of this jurisdiction sometimes and sometimes not—depending on the relations between its government and the Union—even though it always remained a state. The Court remained equivocal about the exact dimensions of the original jurisdiction.

The ad hoc reasoning in Texas v. White nevertheless formed the basis for a durable resolution of the tensions between state and national sovereignty after the Civil War.[78] No one, with the exception of bondholders who were denied the right to invoke the good-faith purchaser rule for negotiable instruments, had anything to complain about. And even those bondholders succeeded in having that part of the decision overruled within two decades.[79] An inconspicuous case on the sale of United States bonds might appear to be an unlikely vehicle for clarifying fundamental law, but only if judged solely by the standards of conventional legal reasoning based on existing sources of law. Judged by the prospective standards of fostering acceptance and obedience to the changed legal order, on the other hand, Texas v. White offered an auspicious occasion to make this change official.

Conclusion

Was the decision in Texas v. White deliberate, inevitable, or lucky? Giving Chief Justice Chase the benefit of the doubt, we might find the choice of this case to declare the indestructibility of the Union to be an act of inspired statesmanship. Or, given the widespread belief, then and now, that the illegality of secession was the verdict of the Civil War, we might find it inevitable that the Supreme Court would come to the same conclusion. Or we might say that the confluence of events and actions, both inside the law and outside it, made the outcome highly contingent. Perhaps Grier’s dissent had been as likely to become the law as Chase’s majority opinion.

Nicoletti does not make a choice among these alternatives, although the first accords with her general suspicion of Chase’s motives,[80] especially in light of his ambition to become president.[81] Indeed, his near quotation of Lincoln’s First Inaugural in Texas v. White might have betrayed an ambition to deliver his own inaugural address. The Court had, after all, heard a number of cases in which it could have ruled on the legality of secession. One of them, Ex parte McCardle,[82] was handed down the same day as Texas v. White, with another majority opinion written by Chase. The Court also delayed the decision in Ex parte McCardle and confined its holding to a narrow jurisdictional issue.[83] The Court employed the same tactic a year later in Ex parte Yerger,[84] in yet another opinion by Chase. Those delaying tactics cleared the way for deciding the legality of secession with a grand dictum in an otherwise inconspicuous case. In this context, ironically enough, Chase’s opinion in Texas v. White becomes, as in Marbury v. Madison, an astute manipulation of political cross-current, ostensibly to carry out the “duty of the judicial department to say what the law is.”[85]

Of course, no matter how opportunistic we find Chase to be, circumstances had to favor his strategy, both in presenting him with the issue of the legality of secession and in generating a promising case in which to resolve it. If Union victory in the Civil War made the illegality of secession a fait accompli, then it was a legal principle simply waiting to be recognized in legal doctrine.

On the other hand, exactly how it would be recognized depended upon the vicissitudes of the shifting politics and judicial decisions in Reconstruction. Even Chase could not control the cases brought before the Supreme Court, which at the time lacked the discretion inherent in the writ of certiorari.[86] If we accept the need for the legal system to adjust to a change in the rule of recognition, as almost all legal theorists do in some form today, all the crucial features of that adjustment cannot be deduced as a matter of first principles. At times like Reconstruction, it is exactly those principles that remain open to reconsideration and revision.

Other times present other challenges and some might draw implications from Texas v. White for constitutional controversies in other eras. Few such cases, however, would present the stark contrast, asserted at the time, between “trial by battle” and “the rule of law.” Appeal to the rule of recognition dissolves this contrast, or so I have argued. Whether it could facilitate reconciliation between social practices and legal doctrine in other circumstances remains an open question. Hart himself thought that judicial decisions resolving disputes over the rule of recognition were few and far between.[87] If they became common, the rule of recognition would tend to supplant standard sources of law in hard cases, diminishing its value as a foundation for law rather than the law itself. Invoking it in the extraordinary circumstances of Texas v. White poses few such risks. Despite all the criticism that the opinion has received, it has not been attacked as an instance of judicial overreaching.[88]

Professor Nicoletti has done a great service in forcefully reminding us of the live controversy that the decision effectively put to rest. The illegality of secession today, at the distance of a century and a half, might appear to be a foregone conclusion, but this conclusion is more a matter of hindsight than insight into the actors at the time and their motives. An uneasy lesson of her book is that the familiar and seemingly realist assumption that law depends on politics has disturbing implications, not just for legal theory but for the law itself, whenever it is put to the test.

 

 


[1]Cynthia Nicoletti, Secession on Trial: The Treason Prosecution of Jefferson Davis (2017).

[2]See id. at 3 & n.7.

[3]Id. at 84–120 (discussing the Civil War as a trial by battle).

[4]Id. at 69.

[5]Id. at 39–49, 225–29.

[6]67 U.S. 635, 650 (1862).

[7]Texas v. White, 74 U.S. (7 Wall.) 700, 19 L.Ed. 227, 237 (1868).

[8]Nicoletti, supra note 1, at 120.

[9]H.L.A. Hart, The Concept of Law 100–10 (3d ed. 2012).

[10]Id. at 116–17.

[11]See Matthew D. Adler & Kenneth Einar Himma, Introduction to The Rule of Recognition and the U.S. Constitution xiii, xviii–xxii (Matthew D. Adler & Kenneth Einar Himma eds., 2009).

[12]See Scott J. Shapiro, What Is the Rule of Recognition (And Does It Exist)?, in The Rule of Recognition and the U.S. Constitution, supra note 11, at 235–68.

[13]White, 74 U.S. (7 Wall.) 700, 19 L.Ed. at 237.

[14]Articles of Confederation of 1781, art. XIII.

[15]U.S. Const. pmbl. The phrase “perpetual union” also appears in the title of the Articles of Confederation: “Articles of confederation and perpetual union between the states of . . . .” Articles of Confederation of 1781, pmbl.

[16]See Articles of Confederation of 1781, art. XIII.

[17]U.S. Const. art. VII.

[18]See Abraham Lincoln, First Inaugural Address, in 4 The Collected Works of Abraham Lincoln 262, 264–65 (Roy P. Basler ed., 1953).

[19]See Nicoletti, supra note 1, at 3 & n.7; Mark R. Killenbeck, Political Facts, Legal Fictions, in Nullification and Secession in Modern Constitutional Thought 223, 223–24, 236–38 (Sanford Levinson ed., 2016); Sanford Levinson, The 21st Century Rediscovery of Nullification and Secession in American Political Rhetoric: Frivolousness Incarnate, or Serious Arguments to Be Wrestled With?, in Nullification and Secession in Modern Constitutional Thought 10, 38–39 (Sanford Levinson ed., 2016); see also Nicoletti, supra note 1, at 120.

[20]Bruce Ackerman, 2 We the People: Transformations 99–119 (1998).

[21]See John Harrison, The Lawfulness of the Reconstruction Amendments, 68 U. Chi. L. Rev. 375, 419–57 (2001).

[22]See supra note 19 and accompanying text.

[23]See Ackerman, supra note 20, at 209–10.

[24]Harrison, supra note 21, at 407–08.

[25]Hart, supra note 9, at 110.

[26]Id. at 114–15.

[27]Id. at xxxviii–xliv (introduction by Leslie Green).

[28]Ronald Dworkin, Law’s Empire 62–65 (1986).

[29]Hart, supra note 9, at 292–93.

[30]Id. at 186–88.

[31]See supra notes 28–30 and accompanying text.

[32]U.S. Const. art. VI, cl. 2.

[33]Michael J. Klarman, The Framers’ Coup: The Making of the United States Constitution 415–16 (2016).

[34]U.S. Const. amend. X.

[35]See supra note 33 and accompanying text.

[36]See Frederick Schauer, The Force of Law 79–89 (2015) (also emphasizing the role of force in gaining acceptance of the rule of recognition).

[37]Hart, supra note 9, at 153.

[38]See Kent Greenawalt, The Rule of Recognition and the Constitution, in The Rule of Recognition and the U.S. Constitution, supra note 11, at 23–25.

[39]Hart, supra note 9, at 100–02.

[40]Stephen Perry, Where Have All the Powers Gone? Hartian Rules of Recognition, Noncognitivism, and the Constitutional and Jurisprudential Foundations of Law, in The Rule of Recognition and the U.S. Constitution, supra note 11, at 295–297. See generally id. at 295–326.

[41]U.S. Const. amend. XIV, § 3.

[42]Id. § 4.

[43]See supra notes 19–23 and accompanying text.

[44]Hart, supra note 9, at 272.

[45]Id. at 273–75.

[46]Articles of Confederation of 1781, pmbl. & art. XIII.

[47]U.S. Const. pmbl.

[48]U.S. Const. art. V.

[49]See District of Columbia v. Heller, 554 U.S. 570, 578 n.3 (2008).

[50]Texas v. White, 74 U.S. (7 Wall.) 700, 19 L.Ed. 227, 238 (1868).

[51]Id.

[52]See id. at 236. But see Restatement (Third) of the Foreign Relations Law of the United States § 201 (Am. Law Inst. 1987).

[53]White, 74 U.S. (7 Wall.) 700, 19 L.Ed. at 237.

[54]Id. at 229.

[55]See Ex Parte McCardle, 74 U.S. 506, 515 (1868) (no appellate jurisdiction); Ex Parte Yerger, 75 U.S. 85, 106 (1868) (only jurisdictional issue addressed); Georgia v. Stanton, 73 U.S. 50, 77 (1867) (no jurisdiction in equity over political question); Mississippi v. Johnson, 71 U.S. 475, 501 (1866) (no jurisdiction in equity to enjoin discretionary acts of the president).

[56]See supra note 3 and accompanying text; White, 74 U.S. (7 Wall.) 700, 19 L.Ed. at 241–42 (Grier, J., dissenting).

[57]See White, 74 U.S. (7 Wall.) 700, 19 L.Ed. at 237­–38.

[58]See, e.g., Norman W. Spaulding, Constitution as Countermonument: Federalism, Reconstruction, and the Problem of Collective Memory, 103 Colum. L. Rev. 1992, 2040–43 (2003) (“However significant its contribution to sectional reconciliation, the fiction of Texas v. White posed a basic paradox for Reconstruction . . . .”).

[59]See New York v. United States, 505 U.S. 144, 162 (1992) (“In Chief Justice Chase’s much–quoted words, ‘the preservation of the States, and the maintenance of their governments, are as much within the design and care of the Constitution as the preservation of the Union and the maintenance of the National government. The Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States.’” (quoting White, 74 U.S. (7 Wall.) 700, 19 L.Ed. at 237)).

[60]White, 74 U.S. (7 Wall.) 700, 19 L.Ed. at 227–28.

[61]Id. at 239–40.

[62]Id. at 239–41.

[63]Id. at 238–39.

[64]Vermilye & Co. v. Adams Express Co., 88 U.S. 138, 145 (1874) (expressing “grave doubt” about the holding relegating good faith purchasers to direct purchasers); Morgan v. United States, 113 U.S. 476, 495–96 (1885) (overruling Texas v. White on the good faith purchaser question except where the title is acquired with notice of the defect of title or under similar circumstances).

[65]See Poindexter v. Greenhow, 114 U.S. 270, 290–91 (1885); Daniels v. Tearney, 102 U.S. 415, 418 (1880); Keith v. Clark, 97 U.S. 454, 461–62 (1878). Recent decisions on federalism continue to rely upon Texas v. White. Shelby County v. Holder, 133 S. Ct. 2612, 2623 (2013) (equal sovereignty of states under the Constitution); Printz v. United States, 521 U.S. 898, 918–19 (1997) (states retained inviolable sovereignty under the Constitution); Kohlhaas v. State Office of Lieutenant Governor, 147 P.3d 714, 718–20 (Alaska 2006) (secession not proper subject for referendum).

[66]See Shapiro, supra note 12, at 245–50.

[67]See Lincoln, supra note 18, at 264–65.

[68]Id. at 265–66.

[69]White, 74 U.S. (7 Wall.) 700, 19 L.Ed. at 237.

[70]Id. at 237–38.

[71]See generally Eric Foner, Reconstruction: America’s Unfinished Revolution, 1863–1877, at 602–12 (1988) (discussing mixed results of reconstruction).

[72]White, 74 U.S. (7 Wall) 700, 19 L.Ed. at 239.

[73]Id. at 239, 241.

[74]Harrison, supra note 21, at 408 (noting that Virginia, Mississippi, and Georgia did not regain their seats in Congress until 1870).

[75]5 U.S. (1 Cranch) 137 (1803).

[76]Id. at 162, 173.

[77]Id. at 173–76; White, 74 U.S. (7 Wall.) 700, 19 L.Ed. at 237, 241.

[78]See supra notes 58–63 and accompanying text.

[79]Morgan v. United States, 113 U.S. 476, 495–96 (1885).

[80]Nicoletti, supra note 1, at 194–95.

[81]Michael Les Benedict, Salmon P. Chase and Constitutional Politics, 22 Law & Soc. Inquiry 459, 460, 478–79 (1997) (reviewing John Niven, Salmon P. Chase: A Biography (1995)).

[82]74 U.S. 506, 506–09 (1868) (discussing application of writ of habeas corpus).

[83]See Ackerman, supra note 20, at 226–27.

[84]75 U.S. 85, 104–06 (1868).

[85]Marbury, 5 U.S. (1 Cranch) at 177.

[86]Felix Frankfurter & James M. Landis, The Supreme Court Under the Judiciary Act of 1925, 42 Harv. L. Rev. 1, 1–2 (1928) (“The remedy proposed by the Supreme Court and adopted by Congress was a transference of numerous classes of cases from obligatory review by appeal or writ of error to discretionary review by certiorari.”).

[87]Hart, supra note 9, at 153–54.

[88]New York v. United States, 505 U.S. 144, 162 (1992) (endorsing Texas v. White as one of several decisions which recognized the independent existence of both the states and the United States).