Six Overrulings

Andrew Koppelman*

Six Amendments: How and Why We Should Change the Constitution. By John Paul Stevens. New York, Boston and London: Little, Brown and Company. 2014. Pp. vii, 133. $23.

John Paul Stevens,[1] who retired in 2010 at the age of ninety after more than thirty-four years on the Supreme Court, has capped his astoundingly distinguished career by becoming an important public intellectual. He reviews books,[2] gives high-profile interviews, wrote a memoir of the chief justices he has known,[3] and has now written a second book.

Six Amendments revisits half a dozen old, lost battles. Stevens appeals over the heads of his colleagues to a higher authority: the public. Now that he is off the Court, Stevens explains why six decisions in which he dissented should be overruled by constitutional amendment.

Four of his proposed amendments would discard judicially constructed doctrines that, in his view, improperly constrain legislatures. Stevens would allow broader limits on private contributions to political campaigns. He would abandon limits on the regulation of private possession of firearms. He would discard the anti-commandeering doctrine, which empowers state officials to refuse to enforce federal law, and the sovereign immunity principle, which holds that even clear legal wrongs committed by public officials cannot be remedied in court.

The other two amendments would involve new judicial interventions in areas where the Court now allows broad legislative discretion: partisan gerrymandering, which Stevens thinks should be subjected to judicial oversight, and the death penalty, which he would abolish.

The book is wonderful when it addresses points of procedure that are likely to be abstruse to the ordinary reader. Most people have never heard of the anti-commandeering rule or sovereign immunity. Stevens lays out each of these points with impressive compression and clarity, showing where the pertinent doctrines came from, why they matter, how the Court reached the result it did, and why its reasoning was wrong. For these discussions alone, this book should be read by any American who wants to understand the Supreme Court’s strange judge-made limitations on federal power. In other parts of the book, Stevens briefly sketches and augments views that he has elaborated elsewhere, and so these parts are less useful to the nonspecialist.

In this Review, I will consider each of Stevens’s six amendments, giving sustained attention to the arguments concerning campaign finance and the death penalty—arguments that he has not made in earlier writings.

*      John Paul Stevens Professor of Law, Northwestern University School of Law; Professor of Political Science and Department of Philosophy Affiliated Faculty, Northwestern University. Thanks to Valerie Quinn for comments, to Ezra Friedman, Joshua Kleinfeld, Leonard Riskin, David Shapiro, and especially Justice John Paul Stevens for helpful conversations, and to Maribel Hilo Nash for research assistance.

[1].     Associate Justice, Supreme Court of the United States (retired).

[2].     See, e.g., John Paul Stevens, The Court & the Right to Vote: A Dissent, N.Y. Rev. Books, Aug. 15, 2013, at 37, available at http:/‌/‌‌articles/‌archives/‌2013/‌aug/‌15/‌the-court-right-to-vote-dissent; John Paul Stevens, Should Hate Speech Be Outlawed?, N.Y. Rev. Books, June 7, 2012, at 18, available at http:/‌/‌‌articles/‌archives/‌2012/‌jun/‌07/‌should-hate-speech-be-outlawed.

[3].     John Paul Stevens, Five Chiefs: A Supreme Court Memoir (2011).

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