Professor Richard Epstein takes Justice John Paul Stevens to task for the latter's alleged "public outbursts" during his book tour. Although Epstein finds something to praise in Justice Stevens' high court decisions and recent book, Five Chiefs: A Supreme Court Memoir, the professor writes in Defining Ideas:
Justice Stevens’ public comments will have, I fear, the effect of diminishing the Supreme Court and, alas, of Justice Stevens himself. Whatever the merits of the book, the multiple interviews that he has given about the book have distilled its thesis to a few quotations that have the unintended consequence of conveying the weakness of his intellectual thought. . . .
The first example in this regard is his statement that he regarded the position of the Bush team in Bush v. Gore as “frivolous.” According to Politico,
Stevens recalls that he bumped into fellow Justice Stephen Breyer at a Christmas party, where the two men discussed the issue.
“We agreed that the application was frivolous,” Stevens writes. “To secure a stay, a litigant must show that one is necessary to prevent a legally cognizable irreparable injury. Bush’s attorneys had failed to make any such showing.”
“Frivolous” is a fighting word. But just what was Justice Stevens thinking? Clearly the statement is a cheap shot at those who took the opposite side in Bush v. Gore. As a matter of decorum, it seems wrong to invoke Justice Breyer’s name while he is still sitting on the Court, and wrong as well to take potshots at those like Justices Scalia and Thomas, who are also on the Supreme Court, or Chief Justice Rehnquist, who is dead. Put otherwise, all sitting justices are subject to all sorts of institutional constraints that make it inappropriate for them to respond to Justice Stevens. Knowing that, it seems wise for him to leave the harsh words to others.
After discussing what he believes to be other examples of Justice Stevens' flippancy, Epstein concludes:
Taken as a whole, what is so troublesome about Justice Stevens’ general views is the unmistakable sense that he has erased the line between what he thinks of as politically unwise and constitutionally required. Indeed, on his view of the world, constitutional law seems to depend on his own sense of right or wrong.