Writing on National Review Online, Ed Whelan engages in a bit of speculation that I wish would have occurred to me. Gerald Ford has said that he is happy to have his Presidency judged on his appointment of John Paul Stevens to the Supreme Court. What else could it be judged on besides pardoning Nixon and WIN buttons? Personally, I am going to decline President Ford's invitation because it is too soon to speak ill of the dead?
What Whelan wonders is whether Stevens would regard Ford's Episcopalian (explicitly Christian) and state-funded funeral as a violation of the Establishment Clause? As a matter of pure prediction, my guess is that he wouldn't, but it is hard to dispute Whelan's view that the principles that Stevens has followed in cases involving church and state more or less lead to that conclusion. He has rejected the notion that a private choice (here that of the Ford family)justifies paying for religious indoctrination. Here it paid for worship. He has been unwilling to give religion in state settings a pass because it is longstanding and traditional, voting to ban opening sessions of the legislature with prayer.
Here we had the government pay for a service chock full of state luminaries in which military choirs sang the songs praising, and invoking the mercy and salvific power, of Jesus Christ. Might not that advance religion? Might not a reasonable observer think that the state is endorsing Christianity?
Of course, I can think of distinguishing arguments but they are all hard to reconcile with the radically secularist view of the Establishment Clause that Justice Stevens (and, for that matter, Ginsburg and Souter and, generally, Breyer) have generally advanced.
This leads me to Justice Stevens' recent claim that he is a judicial conservative. He is as much a judicial conservative as I am a radical Trotskyite. Yet he feels compelled to claim the label. I think it has something to do with our residual sense of the nature of judging. Judges should be circumspect and loathe to advance their own points of view. Justice Stevens probably seems himself as following that ideal and "conservative" seems like a better way to describe that than "liberal."
My own view is that he has not been that kind of a judge, having embraced interpretive theories that makes it well nigh impossible to be circumspect. Still, the idea that he wants to be thought of as conservative is telling.
Blogging at the Volokh Conspiracy, lawprof Orin Kerr had another take, suggesting that Stevens was using "judicial conservatism" in what he sees as an old and outdated sense of the term, i.e., persons who resisted dramatic changes in the foundation of American law. I suppose that the argument would the that, having been appointed following very dramatic changes to the foundations of American law that were wrought by the Warren Court, Justice Stevens resisted "changing" those new foundations, i.e., rolling them back. I suppose (although I'm not sure the record doesn't suggest a willingness on his part to continue the revolution), but that seems to deprive the term "conservative" of any useful meaning (and perhaps Professor Kerr would agree)