August 25, 2005

Justice Stevens gave a speech to the Clark County Bar Association noting the important principle that a judge's preferences don't always coincide with a judge's obligations to decide a case. This seems to surprise Linda Greenhouse, who then decides it's a form of wisdom, and then cites opinions by Justice Kennedy and Justice O'Connor expressing the same principle. This is perhaps ironic, since they could well be the two justices on the Court today who are least guided by it. The Times commends Stevens for being "the only member of the court to have addressed the issue in a speech," which would be an astonishing surprise to those who have heard Justice Scalia speak (or even read this year's New Yorker profile of Scalia that quotes one of his speeches) on this very point. But I suppose one can hardly expect the Times to acknowledge that Justice Scalia has reasonable views, or that Judge Roberts has already expressed this view in the famed french-fry case, or that Justice Thomas has expressed the same view in such cases as his dissent in Lawrence v. Texas.