Justice Stevens and Bright Line Rules

Taking up the thread from my colleague, Professor Friedman, I too think now is a good time to think about some of the themes that we can see in Justice Stevens’ writings. Like Professor Friedman, I too see a consistent effort by Justice Stevens to resist an overly formalistic approach to constitutional jurisprudence. While many who favor formalism do so in the belief that this is the best way to curb judicial activism, Justice Stevens’s writings illustrate how such a goal can prove illusory when it comes to cabining the authority of judges.

There is no better example of this than in the contrast between Justice Stevens’s and Justice Scalia’s opinions in Kyllo v. United States. In Kyllo, the police, using a thermal imaging device, observed the suspect’s home from across the street. The police suspected Kyllo of illegally growing marijuana in his home and they hoped that the thermal imaging device would help them detect any excessive heat emanating from the house. The police scan revealed that Kyllo’s roof and a side wall were relatively hot. Based on this and other information, the police obtained a search warrant and discovered marijuana and evidence of a growing operation in the house.

The issue for the Court was whether Kyllo had a reasonable expectation of privacy in the heat emanating from his house that could be detected by this special imaging device. Concerned about the impact that advancing technology can have on privacy rights, a majority of the Court, in an opinion by Justice Scalia, held that Kyllo did have a reasonable expectation of privacy and the observations by the police constituted a warrantless search of the home. Critical to Justice Scalia’s analysis was his concern about protecting the sanctity of the home, the very core area of Fourth Amendment protection, from invasion through technological advances. He attempted to draw a bright line by ruling that sensory-enhanced observations that reveal information regarding the interior of the home that would not otherwise be observed without physical intrusion constitute a search, where the technology is not yet in use by the general public.

In his dissent, Justice Stevens took a less formalistic approach to the problem, noting that the heat waves observed by the thermal imager were not in fact information about the interior of the home. Rather, the device detected heat emanating off of the walls of the home, and that same information could be observed in any number of ways. Justice Stevens also saw the formalistic bright line rule that the majority hoped to craft as illusory. Most significantly, Justice Stevens noted that by linking the Fourth Amendment protections to the availability of new technology, Justice Scalia was setting the stage for a reduction in privacy protections once the technology achieves a certain level of general use.

At the end of this dissenting opinion, Justice Stevens states that, rather then resolving the rather mundane issue before it, Justice Scalia and the majority attempted to craft an all-encompassing rule for the future. According to Justice Stevens, the Court departed from the “tried and true counsel of judicial restraint.”

It is quite a role reversal to have Justice Stevens accusing Justice Scalia of excessive judicial activism, but his dissenting opinion in Kyllo demonstrates well one of the key guideposts of his jurisprudence. Wary of formalism and cognizant that an excessive devotion to bright line rules can produce benefits that are more perceived then real, Justice Stevens frequently opted for a different, more nuanced and, in many cases, a more common sense approach to the constitutional problems that confront the Court.

Victor Hansen

Justice Stevens and the Commerce Clause

With the retirement announcement last week of Associate Justice John Paul Stevens, it's not too soon to begin to think about how history will view his 34 years on the high court. As many commentators have noted, Justice Stevens was the last appointed without a televised confirmation, and he may have been the last truly non-partisan pick. Looking over his many opinions, what stands out, particularly in more recent years, is not his leadership of the so-called "liberal" wing of the U.S. Supreme Court, but his unyielding effort to steer the Court away from a formalism that threatened at times to undermine the continuing vitality of our constitutional commitments.

An example is Justice Stevens's opinion for the majority in Gonzales v. Raich. That 2005 case concerned the question whether the federal Controlled Substances Act (CSA) prevented individuals in California from possessing, obtaining, or manufacturing cannabis for their personal medical use. At the time, California was one of several states that authorized individuals to use marijuana for medicinal purposes. Whether these laws ran afoul of the CSA depended in part upon whether the CSA was within Congress's power to enact under the Commerce Clause.

That the Act could be constitutionally challenged was a result of the Court's attempt to rein in Congress's power under the Commerce Clause in two earlier cases, United States v. Lopez, a 1995 decision, and United States v. Morrison, a 2000 decision. In each of those cases, a majority of the Court concluded that Congress could not regulate intrastate activity having a substantial effect on interstate commerce unless that activity has some relation to "commerce" or some some kind of "economic enterprise." In Lopez, the Gun-Free School Zones Act of 1990 failed this test because the Act criminalized mere possession of a gun, which, in the Court's view, was not an inherently commercial or economic activity.

One could reasonably have believed that this reason would apply to a federal law prohibiting marijuana possession for personal medicinal use, and that is precisely what Justice Sandra Day O'Connor argued in her Gonzales dissent--that the "possession and use of marijuana for medicinal purposes has no apparent commercial character." As she correctly observed, "Everyone agrees that the marijuana at issue in this case was never in the stream of commerce."

This line of reasoning, if carried to its logical conclusion, would have severely curtailed the ability of Congress to act under the Commerce Clause. But Justice Stevens, in his Gonzales majority opinion, steered the Court back toward an approach more deferential to Congressional judgments. Under that approach, when Congress elects to regulate a national market in a commodity--and there is no real doubt the CSA is an effort to do just that--the Court will not second-guess Congress's determination that the exemption of local possession of one commodity could have a substantial effect on the larger interstate market.

Of course, the Commerce Clause must have some limits--the Constitution, after all, is a grant of enumerated powers to the federal government. But whether an activity does or does not have a commercial character is a judicially-contrived limit that privileges judicial assessment of just what makes an activity commercial over the decided judgment of the majority of the people's representatives in Congress. So what limit is there on the commerce power? Well, there is democracy: as Chief Justice John Marshall put it nearly two centuries ago, "The wisdom and the discretion of Congress, their identity with the people, and the influence which their constituents possess at election are, in this, as in many other instances ... the sole restraints on which they have relied, to secure them from its abuse."

Lawrence Friedman