Robert F. Nagel


This Essay examines six opinions authored by Justice John Paul Stevens for the purpose of assessing whether his iconoclastic methodology might represent an attractive alternative to standard doctrinalism. Each of the opinions involves an effort to reconcile the right "to be left alone" with some other constitutional value. In all but one, conventional formulae are replaced by rather candid interest balancing that draws on nonlegal cultural resources in a relatively transparent way. At its best, this approach allows for realism and a commonsensical accommodation of disparate interests. However, at its worst it leads to opinions that are characterized by a limited and sentimental moral imagination, manipulative argumentation, and harsh intolerance. The hypothesis that emerges from this analysis is that Justice Stevens' methodology, as well as the cultural resources that it draws upon, are adequate, even promising, for validating political compromises on controversial issues but grossly inadequate for explaining why such compromises are unconstitutional.

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