Why it is inappropriate for a Justice to Propose Amendments to the Constitution

February 24th, 2014

Several people criticized my previous post, which faulted Justice Stevens for writing a book proposing six new amendments to our Constitution. The commenters noted that I have not articulated why it is inappropriate for a Justice to propose Amendments to the Constitution. In truth, I thought this issue was so obvious that it didn’t need much explication, but I will do so here because this is an important issue.

I start with the  fact that Justice Stevens is still an Article III Judge. He has not retired. He is still eligible to hear cases on the Courts of Appeals (though I understand that he does not do so). Therefore, any norms of propriety (to say nothing about the apparently inapplicable code of Ethics) on Article III Judges apply equally to Justice Stevens, even though the book markets him as a retired Justice.

Second, I turn to the canonical Correspondences of the Justices. These letters from Chief Justice Jay, in response to a request for opinions by Secretary of State Jefferson, to President Washington, set the tone, and tradition, that the Justices serve a special role in our society of deciding cases or controversies, and do not opine on political questions or issue advisory opinions.

Recall what Chief Justice Jay wrote:

We have considered the previous question stated in a letter written by your direction to us by the Secretary of State on the 18th of last month, [regarding] the lines of separation drawn by the Constitution between the three departments of the government. These being in certain respects checks upon each other, and our being judges of a court in the last resort, are considerations which afford strong arguments against the propriety of our extra-judicially deciding the questions alluded to, especially as the power given by the Constitution to the President, of calling on the heads of departments for opinions, seems to have been purposely as well as expressly united to the executive departments.

For sure, the Judges of the United States Courts are uniquely qualified to opine on issues of constitutional law. I’m sure that they also have special insights on constitutional law. But, the separation of powers compels the judges to check this ambition, and counsels against the “propriety of our extra-judicially deciding” issues of constitutional law. They resolve the cases before them. That’s it. This is sage advice.

What is offering a constitutional amendment, if not saying that the current Constitution is deficient in some way. By saying the Constitution should be amended in X way, a Justice is clearly saying the Constitution does not say X now. This is an advisory opinion, outside the context of a “case” or “controversy.” This should be avoided for the reasons Jay stated, quite well.

Consider this example. What if the President asked Justices Stevens, O’Connor, and Souter (all active Article III judges) to chair a commission (like the Warren Commission) to propose six amendments to the Constitution. Does anyone think this would be a good idea? Would this be much different from the request Thomas Jefferson made of the Supreme Court two centuries ago? I see little difference if Justice Stevens does this at the request of the President, or on his own accord. In either event, an Article III judge is opining on the state of constitutional law, what the Constitution does not say, and what it should say.

I have not read the book, but I suspect that all six amendments would have the effect of making his dissents into majority opinions (this has been a common theme in his recent speeches). If this is the case, then Stevens cannot possibly believe these amendments are necessary. He firmly believes the Second Amendment, in the Constitution as written, is limited to militia service. The law only says otherwise, Stevens thinks, because of one vote on the Supreme Court. Same for Citizens United. He firmly believes that the First Amendment does not protect corporations. Only one vote, not an amendment, stands in the way of fixing that (Alito for O’Connor). He said as much during a recent vent.

During the ABA Q & A period, Justice Stevens was asked if he thought it was necessary to have a constitutional amendment to overrule the 2010 Citizens United case. He replied: “Well, either a constitutional amendment or one more vote.”

Law Professors often discuss Justice Brennan’s private conversations with his clerks about the “Rule of Five” to prompt a discussion on legal realism. But Brennan kept these remarks inside the Court. It’s another thing when a sitting Justice makes such a boldface statement that the Constitution is only what Five Justices say it is. I’m sure many may agree with Justice Stevens, but this is a very precarious topic to convey to the public, in such a flippant manner. It shocks the stability of the Institution itself. And to come from a distinguished Justice, who is now selling a book on this point is very troubling.

If John Paul Stevens wants to hit the lecture tour, and reduce the Court to an institution where five votes gets anything done, while offering constitutional amendments, he is welcome to. But he should not do so while sitting as an Article III judge.