April 13, 2010

Justice Stevens, Pro-Business Activist?

In the wake of Justice Stevens' announcement that he will retire from the Supreme Court, a wide array of commentators (Jan Crawford, Dahlia Lithwick, Ilya Shapiro) are writing about his legacy. Most of the commentary focuses on his status as the most liberal justice on the current Court. Erwin Chemerinsky's profile of Justice Stevens in today's Daily Journal (subscription required) contains a nice summary of Justice Stevens' greatest hits from a liberal perspective.

I won't take issue with the characterization of Justice Stevens as the Court's most reliable liberal in most areas, but it's worth noting that Justice Stevens was also the author of one of the most business-friendly decisions issued by the Supreme Court in the past few decades: BMW v. Gore. That was the case in which the Supreme Court first recognized a federal constitutional limitation on excessive punitive damages. Justice Stevens also joined the majority when the Supreme Court further developed those limitations in State Farm v. Campbell. As readers of this blog are aware, the application of those two opinions in the lower courts has saved American businesses billions of dollars. The Court's most conservative justices, Justices Scalia and Thomas, dissented from those opinions and criticized them as unprincipled judicial lawmaking (or, to use a hackneyed political buzzword, judicial "activism").

Looking solely at the Supreme Court's punitive damages cases, one could say that when Justice Stevens retires, the Court will lose its most prominent pro-business "activist."

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