Justice Stevens and Securities Law

30 Pages Posted: 2 Sep 2015 Last revised: 5 Apr 2016

See all articles by Lyman Johnson

Lyman Johnson

Washington and Lee University - School of Law; University of St. Thomas, St. Paul/Minneapolis, MN - School of Law

Jason A. Cantone

George Mason University, Department of Criminology, Law, and Society; Federal Judicial Center

Date Written: 2015

Abstract

Former Supreme Court Justice John Paul Stevens is famous for many things. A decorated World War II veteran, he is the final Justice to serve in that war. He is the only Supreme Court Justice appointed by a President (Gerald Ford) not elected by the American people, and he may well prove to be the last Justice confirmed by a unanimous Senate vote. On the highest bench, where he served a remarkable thirty-four and a half years, he was known as much for his 720 dissents as for the 363 opinions he authored for the Court. Fierce independence is the most notable of his personality traits, so much so that his 2010 biographers subtitled their work An Independent Life. And of course, his lengthy 2010 dissent in the high profile case of Citizens United v. Federal Election Committee and his provocative 2014 book proposing several constitutional amendments have drawn wide attention.

But one thing Justice Stevens is not renowned for is his role in the securities law jurisprudence of the Supreme Court. Beyond the usual journal articles that address his views on particular, discrete issues, only two short pieces written in the mid-1990s even take up the former Justice’s securities law views. Strikingly, neither a 440-page law review tribute to Stevens nor any of his biographies, including that written by Stevens himself, give this subject any sustained attention.

This is both odd and an unfortunate neglect of Justice Stevens’ legacy in this area of law. Justice Stevens authored more securities law opinions than any justice in the history of the Supreme Court. He surpassed Justices Lewis Powell and Harry Blackmun in overall production. True to form as a “maverick,” Stevens dissented frequently. Yet, unlike other famed dissenters – such as Douglas, Brennan, and Marshall – when Stevens dissented in a securities case, he almost always wrote an opinion stating why. In fact, he wrote more dissenting opinions in the securities area than any other Justice. And even when he agreed with a majority of the Court, he frequently wrote a separate concurring opinion. He wrote more concurring opinions in securities law cases than any other Justice.

In this Article, we tell the overlooked story of Justice Stevens’ important role in Supreme Court securities law decisions. Part II, by briefly highlighting Stevens’ career before his 1975 appointment to the Supreme Court, identifies no evident interest in or connection to federal securities law or the securities industry, making his contributions all the more remarkable. The only foreshadowing of his prolific opinion-writing on the subject of securities law was his voluminous writing of opinions, in general, while serving on the Seventh Circuit Court of Appeals.

Part III describes our data set and methodology. Part IV then explains Justice Stevens’ role in securities law from many quantitative vantage points. These include the sheer volume of his securities opinion production, in relation to other Supreme Court justices, focusing on the 40-year period encompassing Justice Stevens’ years of service (1975-2010) but also reaching all the way back to the passage of the federal securities laws in the early 1930s; the parties and issues involved in, and the outcomes of, his rulings; and the alignment of justices when Stevens wrote securities opinions.

Part V examines whether Stevens advanced a discernible judicial philosophy in his securities opinions. To be sure, his writing defies categorization on some supposed ideological or simplistic results-oriented basis. He adamantly believed that during his lengthy service the Court significantly and wrongly changed legal course in the securities law area. He also thought that the Court had encroached into the lawmaking province of Congress, and in doing so, had dramatically curtailed private remedies. In an important sense, Stevens consciously wrote “against” that transformative judicial movement, believing that his views – preserved in numerous dissents and concurrences − were more faithful to Congress’ intent, and that Congress was the proper body for making changes. Recently, this view was expressed by Chief Justice Roberts for the Court; the difference is that today much of the Supreme Court’s securities law embodies the very changes that Stevens resisted. Today’s conservatism was, to Stevens, the activism of yesteryear. Part VI is a brief Conclusion.

Keywords: John Paul Stevens, Justice Stevens, Supreme Court, Justices of the Supreme Court, securities law, legal history

Suggested Citation

Johnson, Lyman P. Q. and Cantone, Jason A., Justice Stevens and Securities Law (2015). 12 Journal of Law, Economics and Policy 77 (2016), U of St. Thomas (Minnesota) Legal Studies Research Paper No. 15-23, Washington & Lee Legal Studies Paper No. 2015, Available at SSRN: https://ssrn.com/abstract=2654006

Lyman P. Q. Johnson (Contact Author)

Washington and Lee University - School of Law ( email )

Lexington, VA 24450
United States
540-458-8515 (Phone)
540-458-8488 (Fax)

University of St. Thomas, St. Paul/Minneapolis, MN - School of Law

MSL 400, 1000 La Salle Avenue
Minneapolis, MN Minnesota 55403-2005
United States

Jason A. Cantone

George Mason University, Department of Criminology, Law, and Society ( email )

4400 University Drive
Fairfax, VA 22030
United States

Federal Judicial Center ( email )

Washington, DC 20002
United States

Do you have negative results from your research you’d like to share?

Paper statistics

Downloads
46
Abstract Views
747
PlumX Metrics