I share Robert VerBruggen’s amusement (and Orin Kerr’s) at the spectacle of Justice Stevens saying that when the Supreme Court announces a “new rule” of constitutional law, it’s not really a new rule at all, but only a newly discovered rule that had always lurked in the interstices of the Constitution but had hitherto gone unnoticed, neglected, or denied.
But unlike Robert, I would not see this as a conflation on Stevens’s part of originalism and activism. Whether Justice Stevens believes it or not, he evidently feels constrained by the norms of judicial rhetoric to say he believes that judges never, never “make” law, but instead only “discover” it. This is in fact an age-old principle of common-law adjudication, which one can find repeated down through the centuries in Anglo-American law. The “legal realist” school that wrecked legal theory and practice in America over the course of the last century and more is fond of decrying this “discover, not make” principle as a “legal fiction” intended to paper over the invariable reality of judicial lawmaking. Bunk. Even in the common law, “discovery” and not “making” is the correct mode of judicial thinking, inducing in the thoughtful jurist a self-effacing humility in the search for principles that stand outside himself, and outside the latest intellectual fashions or conventional notions of justice, and are therefore really principles.
In constitutional law, it is equally if not more essential to treat the Constitution as being “its own self,” as having a meaning independent of what judges say about it, and which it is their duty (though not theirs alone) to discern to the best of their ability. This is one of the premises at the heart of originalism.
I’m glad to see Justice Stevens embrace that premise and proclaim his allegiance to originalism in this way. This is not a conversion story, of course. (How could it be, from a man who has happily signed onto countless instances of making up new constitutional law untraceable to any original meaning?) But it is a sign of the great enduring power of traditional modes of legal thinking, and of the perpetual defensive crouch of the “living Constitution” alternative, when it comes to the rhetoric of sitting judges. In the legal academy, originalism must defend itself, while the “living Constitution” is the default position of countless scholars. But on the Supreme Court, and I suspect among judges generally, it’s the other way around. Hence even the most activist judges, like Stevens, feel constrained to pay lip service to the Constitution as an independently meaningful source of legal principles, which the judges merely strain to understand–and which they can (surprise!) get suddenly right for the first time after all these years!
So it’s not, I think, a conflation of originalism and activism. It’s a repudiation of activism in the name of originalism. And it is a sign of the Constitution’s “brooding omnipresence” (sorry, Justice Holmes!) over the shoulder of even such a judge as John Paul Stevens. It means nothing with respect to Stevens’s behavior as a judge. But it may mean something hopeful about the long haul in recapturing the Constitution from judges such as him.