On all accounts and on all the evidence, Justice John Paul Stevens is a truly honorable man and American patriot; and I am loath to argue needlessly with a dedicated fellow-golfer. His latest book, alas, prompts less generous sentiments. It is exasperating, and its principal message is wholly unintended: At some level, you want to think about law the way Justice Stevens did, and does. On second thought, you really don’t.
The Book, or: The Mysterious Case of the Missing Cases
The first thing we ought to do about The Making of a Justice: Reflections on My First 94 Years (“MJ94”) is to sue the publisher for deceptive advertising. In the first 130 pages or so, the Justice tells us where he grew up and who he worked for. That could be riveting stuff—if the author ventured to reflect on what made him a Justice. But he doesn’t: it’s not an autobiography, he explained to the Washington Post. Fine, then: don’t let the publisher tell us otherwise.
The remaining 400-plus pages are organized Supreme Court Term by Term; and judicial appointment by appointment. Thus, there is a “Scalia Court,” spanning one Term (1986) until Justice Kennedy’s appointment; a “Breyer Court,” spanning eleven Terms; and so forth. The kernel of good sense in this odd terminology is that any new justice may change the dynamics on the court, and so create a new Court. Justice Stevens mentions that adage, but never pursues the thought beyond assuring us that each of the incoming justices was supremely clubbable and went to a really good law school.
Instead of reflecting on the Court’s changing dynamics, Justice Stevens treats the reader to a mind-numbing summary of cases and opinions: Tony said this, Sandra thought that, I agreed with David, I circulated my draft to Ruth, Nino disagreed, we held thusly. To the Justice’s credit there is next to no bitterness in any of these interminable pages. Justice Stevens gestures at re-arguing a few landmark cases: Bush v. Gore, Kelo, Heller, and McDonald. But on the whole, he is content to summarize the holdings, hornbook style, and tally up the votes—ad nauseam. Justice Stevens recounts what appears to be every death penalty and Eighth Amendment case decided over his tenure. Fine: he doesn’t like the death penalty. But a whole page on Howlett v. Rose? Another whole page on Haywood v. Drown? Those are recondite Federal Courts cases. MJ94 teems with them—whether or not the Justice wrote an opinion.
And then, and even so, an entire category of cases goes missing almost entirely. That category roughly comprises cases having to do with the administrative state and with business regulation, and it contains exceedingly important opinions by Justice Stevens. Obviously, he wrote Chevron, which earns a few anodyne, uninformative pages in MJ94. But a massive number of other cases go missing. I haven’t done a full inventory; I’ll make do with a few examples that I can recall from memory.
Justice Stevens wrote the opinion for the Court in Babbitt v. Sweet Home Chapter of Communities For a Greater Oregon (1995). The question in that “Spotted Owl” case was whether the Endangered Species Act prohibits not only direct human “harms” (the statutory term) to endangered critters but also human activities that might interfere with a species’ well-being in some other way—for example, by reducing their habitat. “Harm,” Justice Stevens declared, is anything that makes a member of an endangered species feel bad. So if you want to build a house on your own land but in a place where Mr. and Mrs. Owl might one day wish to build a nest, the Owls win and you lose.
Justice Stevens also wrote the majority opinion in Massachusetts v. EPA (2007). He held, first, that states have “standing” (meaning a tangible injury that is imminent and traceable to the government’s conduct) to sue over harms from global warming even if nobody else does. That’s because states have “quasi-sovereign” interests and because they deserve “special solicitude” in the standing analysis. That part of the case does show up in MJ94. Oddly missing from the book is the second holding of the case, wherein Justice Stevens opined that carbon dioxide is unambiguously a “pollutant” under the Clean Air Act. So EPA has authority to regulate CO2 emissions. Moreover, the agency must exercise that authority if it determines that said emissions endanger human health, and it must make that “endangerment finding”—now.
The two cases have two things in common.
First, they are singularly underhanded. Sweet Home Chapter shows up in Statutory Interpretation textbooks as a prime example of textualism-as-a-joke: if you know how to manipulate the Latin-named canons, you can turn a statute upside-down without breaking a sweat. Massachusetts v. EPA is so bizarre that the redoubtable Gary Lawson was at one point inclined to yank it from his widely used Administrative Law textbook: all you learn from the case is that there’s a global warming exception to every known principle of Administrative Law. The “standing” holding, for example, is known and pled to this day as “Mass v. EPA standing,” because it can’t be stated in conventional legal terms. Justice Stevens needed a fifth vote for the proposition that somebody should be able to allege a climate change injury. To secure that vote, he appealed to Justice Kennedy’s sentimental embrace of the states’ “dignity,” which “Tony” deemed inviolable except in gay rights cases and which he articulated in, oh, about a million sovereign immunity cases. Those cases are recounted in ‘scrutiating detail in MJ94; and Justice Stevens dissented in all of them, often vehemently. Did he, then, believe the states’-rights burble in Massachusetts v. EPA? Not a chance. He would have performed The Electric Slide on the Bench to hold Justice Kennedy’s vote—which would have been marginally more dignified than the opinion, and way more honest.
Second, the cases unleashed regulatory regimes of gargantuan size. Sweet Home Chapter enabled the feds to conscript vast tracts of private land to “national zoological use,” as Justice Scalia noted in dissent. Massachusetts v. EPA produced two monumental institutional changes. One of them is an explosion of lawsuits that purport to be about “federalism”: you can now sue over the President’s excessive use of hairspray, provided you have a state by your side that asserts Mass v. EPA standing. The other consequence is the single biggest regulatory program in the EPA’s entire history. Not that you’d learn that from the opinion. All we’re saying, Justice Stevens says, is that EPA can’t decline to act on a rulemaking petition, except for reasons stated in the statute. (Not a holding you’ll want to remember, because it doesn’t apply to anything except global warming.) And, the opinion continues, we the Justices aren’t telling EPA to regulate, only to make a science-based endangerment finding. The glitch is that once the EPA makes that finding (a foregone conclusion) it must under the statute regulate CO2 emissions from cars; and once it does that it very likely must regulate stationary sources, under a statute that is obviously not built for climate change. And away we go. Did Justice Stevens understand that he was unleashing a regulatory cascade? Of course he did. Did “Tony”? Not so much.
The Master at Work
How exactly does—or did—Justice Stevens do this? Very subtly. Strategically. And shamelessly. To illustrate, Justice Stevens’ majority opinion in Merrell Dow Pharmaceuticals Inc. v. Thompson (1986)—likewise unmentioned in MJ94, but a “must know” for every federal appellate lawyer—is of a piece with Sweet Home Chapter and Massachusetts v. EPA: underhanded, and productive of a vast regulatory enterprise. It made an unholy mess of what was then well-settled law. A leading Federal Courts professor (Martin Redish) sneered that the opinion reads like it was “written by Judge Wapner.” That’s true in a way; but it misses Justice Stevens’ genius.
Merrell Dow produced Bendectin, a drug alleged to cause birth defects when taken by pregnant women. The plaintiffs sued Merrell Dow in state court, alleging various state common law theories, including negligence. As support for their negligence claim, the plaintiffs claimed that Bendectin was “misbranded” in violation of the Federal Food, Drug, and Cosmetic Act (FDCA) because it lacked adequate warnings about potential dangers. Merrell Dow tried to remove the case to a federal court on the grounds that the claim arose under federal law: you can’t assert it without affirmatively relying on the federal statute. (This is called the “well-pleaded complaint” rule; I’m simplifying a bit because there’s no way to describe the Jackson Pollock canvas of the Court’s federal question jurisdiction after Merrell Dow.) No dice, says Justice Stevens.
To see why this matters, let’s say the plaintiffs plead negligence without mentioning the FDCA; the defendant company raises the federal statute as a compliance or preemption defense; and the plaintiffs reply, “you violated the statute.” That case is not removable to federal court (you can’t remove on a federal defense), which is why tort preemption cases get stuck in state court unless the Supreme Court bestirs itself to grant cert, once in a blue moon. Merrell Dow is subtly different: the plaintiffs were wielding the FDCA as a sword, as opposed to just saying “it’s not a shield.” And still, Justice Stevens says, sorry: defendants will get home-cooked in state court for want of federal jurisdiction, and what could possibly be wrong with that?
Justice Stevens approaches the case from a very strange angle: he says that the parties have assumed that there is no implied federal private right of action for violations of the FDCA. (An “implied private right” means that if a federal statute prohibits A from doing x, B has a right to enforce that prohibition in federal court even if the statute doesn’t say so.) Well, duh. The plaintiff-lawyers didn’t assert the claim because they didn’t want to be in federal court. And Merrell Dow’s lawyers didn’t argue the point because they’d rather go back to state court than hand the trial lawyers an implied-private-rights club for the next 100 cases. In any event “the parties assumed” is just hot air. It’s a jurisdictional question, for Pete’s sake. If you‘re serious about it, decide it; you don’t need the parties. But that’s the least of the problems with the opinion.
The absence of an implied private right of action, Justice Stevens continues, tells us that Congress didn’t intend to provide a private federal remedy for violations of the FDCA. To get the joke, you must know that Justice Stevens never encountered an implied federal right he didn’t like: he dissented in tons of cases in which the Court declined to find such a right. (Unlike Merrell Dow, those cases do show up in MJ94.) Here, he manages to turn the Court’s restrictive jurisprudence to his advantage. If Congress did not intend to provide a private federal remedy under federal law, his theory goes, Congress also did not mean for the federal courts to provide private remedies under state law.
That core holding of Merrell Dow is not obviously correct. In point of fact, it is borderline sinister. Let’s distinguish between two things that Congress could have been saying by refusing to create a private federal remedy:
(A) Congress didn’t want there to be private remedies for violations of the FDCA, in any court (state or federal).
(B) Congress didn’t want to create private remedies under federal law, in federal court.
If (A) is what Congress meant, the FDCA would preempt state tort remedies. Is that what the Court is saying in Merrell Dow? Heck, no. Justice Stevens did not think that federal regulatory statutes, especially those governing pharmaceuticals, preempt much of anything at all, especially not creative state tort claims. (The most consequential of those cases is Wyeth v. Levine (2009)—also authored by Justice Stevens and, sure enough, missing from MJ94.) So it’s (B): no federal private remedy. Why, though, would Congress not want to create a private federal remedy for FDCA violations—but on the other hand decline to preempt private state remedies? Most plausibly, Congress might leave state law to operate because it may provide compensation where federal law does not. (I’m not terribly fond of this argument and the Supreme Court has rejected it; but at least it’s not crazy.) But even that theory doesn’t get you to the Merrell Dow holding. It covers the common scenario mentioned earlier: pure state law claim; preemption defense; failure-to-comply reply. Merrell Dow, in contrast, doesn’t just leave state law in place; it turbocharges state law complaints with a federal element. Put the pieces together: Congress, we are asked to believe, created a world in which plaintiffs’ lawyers win coming (no preemption) and going (no removal on defense) and going yet again (no removal in state law cases predicated on federal elements). The FDCA serves only as a sword and never as a shield; and federal drug policy is shaped not by the FDA but by whatever state courts and juries make of the FDCA when it gets imported into state law claims. Now, are you happy?
What We Learn
While I’ve simplified Merrell Dow for online reading purposes (Justice Stevens’ opinion has more wrinkles than Yoda) I suspect that even patient readers will have found my account a tad involved. The thing is, if you want to understand Justice Stevens’ jurisprudence, you have to appreciate it at that level. And I confess that I kind of like this stuff, and love to teach it. You, dear student, can enthuse about textualism and originalism and audition for FedSoc Chapter President to your heart’s content. But if you want to be a real lawyer, then this is what you need to learn, because it’s what you will be up against. Before you obsess over the true and original meaning of “commerce” or “the recess” of Congress, know that 90 percent of ConLaw and AdLaw is half jurisdiction. See how clever justices turn adverse cases and doctrines to their advantage. Realize that textualism is no defense against results-driven maneuvering, just one more weapon in the arsenal. And yes, Merrell Dow may come up on your exam.
“An impartial guardian of the law … who left his position at the top of his game,” President Obama says about Justice Stevens in a dust cover blurb. “Top of his game” is right. However, behind the charming, bow-tied, Midwestern, always-a-Ford-Republican façade lurks no impartial guardian but instead, a crafty manipulator and a tireless champion for the regulatory state and its constituencies, foremost the trial lawyers.