We here at the SMSB have noted that Justice Stevens‘s opinions can sometimes read more like op-eds than jurisprudential expositions on matters of constitutional import. Hence, his stupefying majority opinion in Massachusetts v. Environmental Protection Agency, 127 S. Ct. 1438 (2007), in which he judicially declared carbon dioxide to be the cause of global warming. Massachusetts, 127 S. Ct. at 1446.
Well, one of his concurrences handed down in February actually turned into a subsequent New York Times op-ed. In Riegel v. Medtronic, Inc., Justice Stevens asserted that Justice Scalia‘s majority opinion put forward a “a policy argument advanced by the Court, not by Congress.” 128 S. Ct. 999, 1012 (2008 ) (Stevens, J., concurring in part and concurring in the judgment). Following Justice Stevens’ lead, the New York Times, in addition to the L.A. Times and others, were both quick to attribute policy motives to the Court.
Well, last week the majority author did not think it helpful the media’s cloaking of a textual, preemption decision like Medtronic with the seemingly policy-driven headline, “No Recourse for the Injured.”
In defending the media’s “echoing [of] the judgment of [Justice] Scalia’s colleague,” no less than famed jurist Richard Posner‘s son and Kirkland and Ellis Professor of Law at the University of Chicago Law School, Eric Posner, noted the similarity of the press accounts to Justice Stevens’s concurrence.