Justice John Paul Stevens’s Most Controversial Position

Last week Justice John Paul Stevens announced that he would be retiring from the Supreme Court after nearly 35 years of service. While most of the talk was about how Stevens has led the liberal bloc on the court, whom Obama would choose to replace him, and so on, what got less attention was perhaps Stevens’s most radical stance:

He doesn’t think Shakespeare wrote Shakespeare.

He believes it was Edward de Vere, the 17th earl of Oxford. That puts him in league with the Oxfordians, a group of Shakespeare doubters sufficiently well-organized to have their own society; last year the group selected Stevens as the Oxfordian of the year.

Stevens’s opinion on this pressing matter got some publicity last April in a Wall Street Journal feature, which also revealed that Antonin Scalia is an Oxfordian, meaning that the two have at least one thing in common. But it wasn’t like Stevens had kept his views secret: In 1992, the University of Pennsylvania Law Review published an article by Stevens that, while ostensibly about statutory construction, also managed to work in an argument in favor of de Vere’s authorship. The paper, titled “The Shakespeare Canon of Statutory Construction,” is divided into five acts. An excerpt:

As evidence of the author’s probable noble birth, they [Oxfordians] point out that all but one of his plays –The Merry Wives of Windsor — are about members of the nobility. The contrast between Shakespeare’s characters and the commoners, such as the alchemist or the miser, about whom his contemporary Ben Jonson wrote, is striking. Even more striking is Shakespeare’s repeated reference to nobility as the highest standard of excellence.

Despite the distancing “they” it’s clear where Stevens stands.

Later in the essay he responds vigorously to objections by Stratfordians (people who think Shakespeare wrote Shakespeare). In the process he displays an impressive command of the minutiae of this long-standing scholarly controversy, mentioning a grant that Queen Elizabeth made to de Vere as possible evidence that she was in on the ruse:

Using a formula that was characteristic of special payments to members of the Secret Service, on June 26, 1586, she signed a privy seal warrant granting de Vere an annuity of one thousand pounds per year for which no accounting was to be required …. The Queen, it appears, may have been a member of the imaginative conspiracy and for reasons of her own may have decided to patronize a gifted dramatist, who agreed to remain anonymous while he loyally rewrote much of the early history of Great Britain.

What this tells us about Stevens, other than that he’s a big fan of the plays, is that he’s willing to stake out a controversial position even if that puts him in the minority. Which, given his record on the court for the last three-plus decades, is not exactly a surprise.

By the way, for a look at why the topic of Shakespeare’s authorship remains taboo in academic circles, check out Jennifer Howard’s recent piece.

(That’s de Vere above, by the way.)