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April 18, 2008

What do folks think about Justice Stevens' new view on the death penalty?

Though I am still working my way through all the opinions in the the nearly 100-page Baze lethal injection ruling from SCOTUS, I am not surprised to see that Justice Stevens' concurrence is garnering special attention.  For example, Linda Greenhouse has this new piece headlined "Justice Stevens Renounces Capital Punishment."  Here are excerpts:

When Justice John Paul Stevens intervened in a Supreme Court argument on Wednesday to score a few points off the lawyer who was defending the death penalty for the rape of a child, the courtroom audience saw a master strategist at work, fully in command of the flow of the argument and the smallest details of the case.  For those accustomed to watching Justice Stevens, it was a familiar sight.

But there was something different that no one in the room knew except the eight other justices. In the decision issued 30 minutes earlier in which the court found Kentucky’s method of execution by lethal injection constitutional, John Paul Stevens, in the 33rd year of his Supreme Court tenure and four days shy of his 88th birthday, had just renounced the death penalty....

His renunciation of capital punishment in the lethal injection case, Baze v. Rees, was likewise low key and undramatic.  While reminiscent of Justice Harry A. Blackmun’s similar step, shortly before his retirement in 1994, Justice Stevens’s opinion lacked the ringing declaration of Justice Blackmun’s “From this day forward, I no longer shall tinker with the machinery of death.”  Justice Stevens’s strongest statements were not in his own voice, but in quotations from a former colleague, Justice Byron R. White, an early death penalty opponent.

When I have a bit more time to reflect on Justice Stevens' opinion in Baze, I hope to do a post putting his new views in some historical and political perspective.  For now, however, I invite readers to comment on Justice Stevens' comments.

UPDATE: It dawns on me that I ought to quote the most telling sentence in Justice Stevens' opinion in Baze, one that could (and should?) launch a thousand law review articles:

The thoughtful opinions written by THE CHIEF JUSTICE and by JUSTICE GINSBURG have persuaded me that current decisions by state legislatures, by the Congress of the United States, and by this Court to retain the death penalty as a part of our law are the product of habit and inattention rather than an acceptable deliberative process that weighs the costs and risks of administering that penalty against its identifiable benefits, and rest in part on a faulty assumption about the retributive force of the death penalty.

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Justice Stevens has made a journey that many have made before. It is sad that only now does he realize the extent to which there has been a steady corruption of the values of justice in the implementation of the death penalty since he helped restore it back in 1976. Since then, 1099 executions have taken place. Indeed, from that time, the evidence of unreasoned, wrongful, malicious and unconstitutional conviction and sentencing in some states has damaged the standing of the law both within the US and internationally. While he has played a major role in trying to block the most obvious excesses of state and federal judiciary, he has not always carried the day, and only now, when recent decisions have shown a dangerous unbalancing of the court view of justice, has he decided that enough is enough. There are some indications in the various Baze opinions suggesting that others on the court are also now feeling uncomfortable with the constitutional standing of the death penalty. Perhaps more importantly in the short term, there are indications that some significant figures beyond the Supreme Court are taking both note of, and gaining strength from, this declaration. If there was doubt before at the strength of interest in the abolition of the death penalty, those doubts have now been blown out of the water.

Posted by: peter | Apr 18, 2008 8:56:43 AM


Agreed, capital punishment is waning, perhaps even slowly dying. The amazing thing is that the debate is being waged increasingly in legislatures and pews. That pro-life catholics and protestants who follow their church's doctrinal creeds are systematically excluded from capital juries, as well wave after wave of exonerations and murder victims family members who speak out against death, are clearly hastening the tide against the death penalty. Whether this is just a momentary swing against the death penalty only to see it come back stronger than ever or the slow death of the machinery of death remains to be seen.

Posted by: karl | Apr 18, 2008 9:17:56 AM

Scalia basically destroys Stevens in his concurrence in Baze. No surprise that Greenhouse would not comment on that aspect of the decision.

Posted by: steve | Apr 18, 2008 11:02:04 AM

I agree with steve. Of course, the same omission is made by Professor Berman himself. Let me try to make up for their shortcomings by quoting the most important section of Scalia's concurrence:


But actually none of this really matters. As Justice Stevens explains, "'objective evidence, though of great importance, [does] not wholly determine the controversy, for the Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment.'" Ante, at 14 (quoting Atkins v. Virginia, 536 U. S. 304, 312 (2002); emphasis added; some internal quotation marks omitted). "I have relied on my own experience in reaching the conclusion that the imposition of the death penalty" is unconstitutional. Ante, at 17 (emphasis added).

Purer expression cannot be found of the principle of rule by judicial fiat. In the face of Justice Stevens' experience, the experience of all others is, it appears, of little consequence. The experience of the state legislatures and the Congress -- who retain the death penalty as a form of punishment -- is dismissed as "the product of habit and inattention rather than an acceptable deliberative process." Ante, at 8. The experience of social scientists whose studies indicate that the death penalty deters crime is relegated to a footnote. Ante, at 10, n. 13. The experience of fellow citizens who support the death penalty is described, with only the most thinly veiled condemnation, as stemming from a "thirst for vengeance." Ante, at 11. It is Justice Stevens' experience that reigns over all.


Justice Scalia was simply being polite. What Justice Stevens did was nothing less than a full-throated cry for judicial tyranny. It's an opinion so extreme that none of the other liberal justices was willing to join.

The upshot here is that, as Professor Orin Kerr noted, Justice Blackmun made a similar proclamation right before he retired. Justice Stevens is already 88. Let's hope this is a pattern.

Posted by: realist | Apr 18, 2008 11:14:54 AM

Oh no! Judicial tyranny! Whatever shall we do! Every day, our children must live in fear of judges lurking behind every bush waiting to impose fiats upon people.

Next thing you know, the courts will be ordering that common criminals be released even though there is amble objective evidence provided by the police that they did it (or something else). Nowhere in the constitution does it specify that the working classes have any right to be free for any reason, yet-alone made up technicalities. The constitution was never meant to protect the poor or accused murderers.

Posted by: S.cotus | Apr 18, 2008 11:42:44 AM

I addressed this question to Orin at Volokh but did not get a very satisfactory answer other than that Chief Justice Warren adopted the same approach: where the Eighth Amendment expressly applies an abstract and inherently subjective standard like "cruel and unusual," how is it not the case even under a textualist interpretive approach that, as Justice Stevens says, "the Constitution contemplates that in the end [the Justices'] own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment"? By defining the relevant criterion as one of "cruelty," which even an eighteenth century reader would understand is clearly in the eye of the beholder, it seems to me that the framers of the Eighth Amendment expressly invited-- and indeed compelled-- precisely the kind of analysis that Justice Stevens applied in Baze, bringing his own intuitions about what punishments are excessively cruel to bear on the constitutional issue.

Posted by: anon | Apr 18, 2008 11:59:43 AM


For those of us who believe in the originalist approach toward reading the Constitution, the meaning of the document does not shift with time. It's fixed in time, much like the proverbial insect in amber. (Justice Scalia went as far as to claim that the Constitution is not alive, it's "dead". Not exactly the word I would use but he believes in the same idea.) Interpreting the Constitution requires knowledge of the context in which it was passed. It requires discerning the intent of the Framers through our sacred texts (if you will), documents like the Federalist Papers, notes on the Constitutional Convention, correspondence among the Framers,... even 18th century dictionaries.

We reject the idea that words are infinitely malleable. We don't believe that the Framers ever intended for justices to amend the Constitution as they see fit. If that is the case, why have Article V in the first place? In fact, why go to the trouble of having an entire Constitution if it was intended to be a plaything of the justices? Why not replace its 7 articles and the Bill of Rights with this simple formulation: There shall be a Supreme Court. It shall govern the nation. The end.

If the text must be amended, it must be done using Article V. If one day, people like Justice Stevens successfully amend the Constitution through the Article V process to explicitly prohibit the death penalty, (another possibility being to convince Congress and the states to abolish the death penalty) I can denounce that decision as being unwise on the policy level. But I cannot condemn it as being unconstitutional.

Posted by: realist | Apr 18, 2008 12:41:41 PM

I think Justice Stevens is right to point out the important role that "habit and inattention" play in many states' decisions to retain the death penalty. Thought experiment: If courts struck down the death penalty in the 35 or so states that currently have it, how many state legislatures would pass new capital punishment statutes?

To put it another way, in many states there is not currently the will to repeal death penalty statutes, but there also wouldn't be the will to enact a new death penalty statute if there weren't already one on the books. A few spring to mind: NE, NH, MD, CT. Other candidates: MT, NM, CO, WA, CA.

Posted by: dm | Apr 18, 2008 12:47:33 PM

Your point makes sense but it seems to me that an argument could be made even on originalist grounds that, by using such a subjective term as "cruel" in the Eighth Amendment, the framers intended to adopt some version of the "evolving standards of decency" test. In other words, there's nothing patently anti-originalist (or anti-textualist) about the application of the Eighth Amendment changing over time if the text and original intent contemplate that possibility. Maybe I'm wrong, but that doesn't strike me as an obviously ridiculous reading of the Eighth, though I would hasten to add that it would not extend to other constitutional provisions with more clearly objective meanings.

Posted by: anon | Apr 18, 2008 12:48:56 PM

From Grits, who deserves a medal.

Defendants in Austin's famed 1991 "Yogurt Shop Murders" may wind up having their names added to Texans exonerated through retesting old DNA evidence, over strenuous prosecution objections, reports the Austin Chronicle:

A lawyer for yogurt shop defendant Robert Springsteen says that retested DNA evidence proves his client is not guilty and should be released from prison. In a writ filed Wednesday, attorney Joe James Sawyer argues that "new" DNA testing of a vaginal swab taken from victim Amy Ayers at the crime scene in 1991, requested by prosecutors, has revealed a previously undetected male DNA profile that does not match any of the four identified defendants. "This exonerates Defendant Springsteen and makes it clear someone else committed these murders," Sawyer wrote. (Download the full writ here.)

This case was a nightmare for investigators because of sparse evidence and more than 50 people confessing to the crime (including two of the four current defendants. Most of those who confessed, of course, were completely uninvolved in the crime. The state settled on these defendants based largely on two allegedly coerced confessions from these defendants (a video from one interview showed a detective holding a gun to a defendant's head.)

Posted by: George | Apr 18, 2008 12:54:55 PM


I'm sure you won't be surprised when I... "respectfully dissent".

My view of the Cruel and Unusual Punishment prohibition is that it must be read in the context of the late 18th century. On this issue, I agree with Justice Thomas's concurrence in Baze where he suggested: "[A] method of execution violates the Eighth Amendment only if it is deliberately designed to inflict pain."

In my opinion that's the most faithful (to the Framers) reading of that clause.

I'm wary of these creative interpretations because of all the mischief they can do. You add in the end: "I would hasten to add that it would not extend to other constitutional provisions with more clearly objective meanings." But when people become so creative, few parts of the Constitution will be safe from their tinkerings. Take, for example, Art. I Sec. 2, regulating House of Representatives membership. The text of the Constitution merely states: "The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative...."

One can creatively interpret this provision to mean that only 50 representatives are necessary. After all, 1/state certainly falls within the no more than 1/30,000 clause and it certainly satisfies the second portion requiring a minimum of 1/state. But does anyone seriously believe that it was the intent of the Framers that the Senate's membership be larger than the House's? (Contrary to what some people might think, the Framers never stated in the Constitution that the House must have a larger membership than the Senate.) How many people will be happy with less representation that this creative interpretation offers? I can imagine any number of ways to twist the Constitution beyond recognition while staying, superficially, faithful to its text.

That leads to my final point. While it's true that the Constitution contains various anti-majoritarian provisions, ultimately, the power of the State rests in the people.

The Constitution merely permits the death penalty. It does not require it. As I suggested earlier, if the states and Congress abolish the death penalty, I may consider it bad policy, but I can't consider it as being unconstitutional.

I believe that this is consistent with the intent of the Framers. The reason why originalists tend to revere the work of the Framers is because they're the ones who drafted a document which laid the foundation for the most successful country in the world. This document has endured for more than 2 centuries. (In contrast, France is now on its 5th constitution.) I invite people to find me a single example of a more successful constitution.

Why tinker with success? I for one have my own complaints about the will of the people (I consider myself an elitist.) and even the Constitution itself (the 17th Amendment easily comes to mind). But I recognize the fact that I do not want to move to any other country. Therefore, despite my own ideas about the imperfections of the nation as well as its Constitution, I will play by the rules.

Let me end this absurdly long post with a famous quip by Justice Scalia: "I have my rules that confine me. I know what I’m looking for. When I find it — the original meaning of the Constitution — I am handcuffed.... I cannot do all the mean conservative things I would like to do to this society."

Posted by: realist | Apr 18, 2008 1:30:34 PM


But Stevens does more than claim that states have been inattentive to the death penalty - he claims that states, Congress, and the Court itself has been inattentive. As Orin Kerr responded on Volokh, "[t]he Supreme Court is inattentive to the death penalty like college guys are inattentive to women and beer." Essentially Stevens was proclaiming that he, and only he, was attentive enough to notice that the death penalty is unconstitutional. Coming from a politician or average citizen, such a statement might rightly be considered "off-the-wall." Coming from a Justice of the Supreme Court of the United States, it's frightening.

Posted by: steve | Apr 18, 2008 2:00:46 PM

First, your argument regarding the House of Representatives seems to me to be irrelevant because other language you don't quote requires apportionment, so the scheme you describe wouldn't be faithful to the text whether one is an originalist or not. (I would go further and say the Constitution's text requires that the population of the least populous state be the benchmark for the size of all districts if that state has only one representative, as apportionment has otherwise not occurred).

Another flaw in your argument is that you set up a false dichotomy between strict adherence to the original understanding of the Constitution and hypertechnical readings of the text. Plenty of non-originalists think considering the views of the Framers is important -- we just don't think all answers must be rooted there.

Which brings me to my final point. Originalism fails on its own terms. It has not been demonstrated that the Framers understanding of the Constitution was that its interpretation would for all time depend on reference to their understanding. Indeed, given the Framers' own intellectual independence and intellectual tradition, I suspect that at least some of them would find the idea preposterous.

Parts of the Constitution are written in objective language and parts are written in subjective language. Absent a smoking gun from the founders showing that they thought "cruel and unusual" must mean to their 21st century descendants what it meant to them, I find it eminently sensible that they trusted each generation to adhere to the principle that it must not impose any punishment society deemed cruel and unusual. After all, they were progressive men for their times, and they knew as well as anyone that understandings and sensibilities change. I simply don't believe they were using "cruel and unusual" as code for a narrower meaning when they could have been explicit, as they so often chose to do elsewhere. Broad language demands broad interpretation, and there's nothing radical about saying so.

Finally, I feel compelled to address Justice Scalia's repeated argument that the Constitution cannot prohibit what it allows. Noatter how obvious this turn of phrase may sound when uttered, it is not so. The restrictions on when the state may take life assume that life may be taken, and at the time of the Constitution's framing, this would have been true under either an originalist or non-originalist view, as nobody then thought capital punishment cruel or unusual, or at the very least there was no broad understanding that this was the case. But if you believe, as I do, that the words "cruel and unusual" refer to something other than the inner thoughts of James Madison and his friends, and that the Framers would have found it unremarkable that later generations would have a different view of "cruel and unusual."

Admittedly, they are dead and we cannot ask them what they think. But we are alive, and I trust our hearts and minds in the context of the Framers' skillfully written text.


Posted by: M. | Apr 18, 2008 2:18:57 PM

Steve, Justice Stevens's comment was no more "frightening" than any other opinion written by one Justice that none of his or her colleagues joins. This happens all the time. The two who do it most often are the Justices at the Court's poles, Stevens and Thomas. I frequently disagree with both, but it's not "frightening".

I wish I had a dollar for every solo opinion by Thomas in which he claims a particular conclusion is obvious, despite the fact that none of his eight colleagues have signed on. If that kind of opinion frightens you, then you need to be frightened when conservatives do it, too.

Posted by: Marc Shepherd | Apr 18, 2008 2:21:19 PM

Sorry for the typo and sentence fragment in the penultimate paragraph there. The sentence that begins with "But if you believe" should end with: "... there is nothing inconsistent about the other clauses Justice Scalia points to." In other words, unless you already share Justice Scalia's other views, this one adds nothing.

I do indeed believe that there are parts of the Constitution that are static and other parts that are dynamic. This is indeed unsatisfying even to me (deep down, I truly share Justice Scalia's love of clear, immutable rules, and I am eager to embrace them when I think they are justifiably found), but that doesn't make it any less true.

Sorry again for the typos -- writing this on a mobile devce.

Posted by: M. | Apr 18, 2008 2:28:33 PM

Marc Shepherd,

I'm not sure why you think I wouldn't be frightened if Thomas had said the same thing, but it's apples to oranges anyway. It's not frightening just because only Stevens believes it, but because he contends that only his belief matters. And much more frightening in a field of law where, for better or for worse, the constitutionality of a form of punishment is shaped by public opinion.

Posted by: steve | Apr 18, 2008 2:52:28 PM


1. I assume by apportionment language you mean: "Representatives and direct Taxes shall be apportioned among the several States...." The key words there being "among the several States". It does not say that apportionment must occur within a state. (If it does, our current system is unconstitutional. After all, Alaska, Wyoming, and several others have only 1 representative each.) Therefore, according to my creative interpretation, I'll argue that the Framers meant that the apportionment must respect state borders.

2. It's not a false dichotomy. The point of my demonstration with Art. I Sec. 2 is to pose the question: Where does that creativity end? Is there any particular reason that the creativity should be confined only to the 8th Amendment? (That is to say, is there any particular, ***objective*** reason besides whatever is convenient to death penalty opponents?)

3. As for evolution of the Constitution, I direct your attention to Article V. Let me note that the Framers made use of Article V (see Bill of Rights and, arguably, 11th and 12th amendments) instead of engaging in creative interpretations. Aside from that, there's also the Tenth Amendment's explicit provision for states' rights. As I suggested earlier, the Constitution merely provides for the death penalty, it does not require it. If one day, Congress and the states pass legislation to abolish the death penalty, the constitutional allowance for the death penalty remains but it will be effectively dead. Your case for creative interpretation fails to address the point of Article V and the fact that the Framers themselves shunned creative interpretation in favor of Article V.

Posted by: realist | Apr 18, 2008 3:01:06 PM

1. I actually DO think our current system is unconstitutional and precisely because of the Wyoming/Alaska problem -- that was my point in the parenthetical. Senators need not be apportioned among the states, but representatives must be. "Apportioned among the several states" has no intelligible meaning unless it means that the House must be large enough to ensure no state is over or under represented. Right now, the smallest states are overrepresented. The Great Compromise supports my reading, which is that the non-apportionment of the Senate gives way to strict apportionment in the House. It's bad enough that Wyoming has as many Senators as California -- it's absurd for it to also have disproportionate representation in the House.

2. There is indeed a principled way to avoid what you call "creativity." Reasonable people can disagree about what "cruel and unusual" means but not about what "the president must be 35 years old" means. There is no slippery slope here except the one that will exist no matter what canons one favors -- if you appoint irresponsible judges you'll get irresponsible rulings. Do you think originalism promises some escape from that? I certainly don't.

3. The fact that Article V provides a way to change the text of the Constitution entirely does not change the fact that some parts of the Constitution are subjective and others are objective. I have never understood how this argument gains such traction. I can just as easily say that if we think they erred by writing the Eighth Amendment in subjective terms, we ought to amend it to speak in objective terms, and then Justice Stevens's view won't count anymore. I am not a categorical opponent of the death penalty and would not have signed his opinion if I were on the court. But I'm not an originalist either.
I am not advocating creative interpretation -- you are, by making the genuinely creative but wrong argument that the Franers were speaking in code to us. Where they wrote broadly, we should read broadly.


Posted by: M. | Apr 18, 2008 3:24:46 PM

Steve, my point is that this opinion is no different from any other solo opinion. All justices file them, some more than others. They all have the property that a Justice says something with considerable confidence, despite the fact that no other Justice was willing to join them.

Nowhere does Stevens assert that "only his belief matters." He is stating his position, which is what an opinion is supposed to do. He is still sufficiently compos mentis to realize that no other Justice agreed.

Posted by: Marc Shepherd | Apr 18, 2008 3:43:44 PM

Marc Shepherd, you are correct that Stevens doesn't actually state that only his belief matters. But I think Scalia is right in pointing out that such is the only reasonable interpretation of Stevens's opinion.

Posted by: steve | Apr 18, 2008 3:47:23 PM


You didn't answer my point that "among the several states" merely required respect for state borders, not apportionment within states. Apparently, reasonable people can have a disagreement on whether the House of Representatives should be composed of only 50 members or more than 435. I think if I go over the Constitution with the fine comb of creative interpretation, I'll find more disagreements with you than you think possible.

Your problem remains that you cannot find an example of the Framers themselves engaging in creative interpretation. After all, there was nothing in the text of the 7 articles that actually required cruel and unusual punishment. If creative interpretations are perfectly alright, why was the 8th Amendment needed in the first place?

Posted by: realist | Apr 18, 2008 4:14:39 PM

"Is there any particular reason that the creativity should be confined only to the 8th Amendment? (That is to say, is there any particular, ***objective*** reason besides whatever is convenient to death penalty opponents?)"

Realist, I think M. has made my point more eloquently than I did, but this question suggests that you're still not grasping the point I'm trying to make (which is likely my fault). My point is that by using, if you'll pardon the awkward phrase, the objectively subjective standard of "cruel and unusual," the framers arguably intended for the application of the Eighth Amendment to shift in response to changing social views on punishment and to incorporate the personal views of members of the judiciary into the constitutional analysis. If this interpretation of the language of the Eighth is correct, then the distinction between originalism, textualism, and living Constitutionalism collapses with respect to the Eighth Amendment. The same argument could perhaps be made with respect to other parts of the Constitution which contain inherently subjective terminology ("due process" jumps out as an obvious example), but would not extend to other areas in which the text does not incorporate an overtly subjective standard.

Posted by: anon | Apr 18, 2008 4:24:36 PM

Why not call Justice Scalia's historical bluff? In the beginning, public hangings were religious ceremonies:

"'"An execution was outside, open to the public, and embedded in ritual; now it is behind closed doors, accessible only to a few, with as little ceremony as possible' (3). Death, far from being casual, was invested with ceremony and drenched in religious significance. It offered a grand drama of sin and redemption that was meant to instruct, inspire, and warn. The presence of the crowd and the active participation of the condemned were crucial to its purpose." cite

So, to be true to originalism, it must be nearly the same or must contain the religious purpose. Americans should go to executions like going to church and a defendant should demand as much by demanding the law be true to the constitution's original intent.

Posted by: George | Apr 18, 2008 5:19:34 PM

I think that Stevens is exactly right about the rention of the death penalty being more a product of inertia and habit than anything else. However, that opinion is the mark of a true judicial conservative - while he lays out the argument for the future, he still votes to follow precedent - while saying that the precedent should be changed. Instead, of ranting and raving like Scalia or Thomas so often do about how the majority is wrong, he writes to presuade future jurists and policy makers.

Stevens knows that he will not be on the court forever - this does seem like a last stand type of move (my guess is that Stevens announces his retirement in February or March 2009 after the new President and Senate is in office).

State legislatures would be well served to take up Steven's challenge and really examine why the death penalty still exists and what, if anything, can be done to fix it.

Posted by: Zack | Apr 18, 2008 5:27:21 PM


The problem with subjectivity is precisely that, it's subjective. Since there is obviously a disagreement about whether lethal injection is "cruel and unusual", who is to say that the supporters are wrong and the opponents are right?

There is no resolution to that question other than the one that worries steve and I the most: The resolution of that question will only come depending upon which side has more votes on the Court. In this case, the supporters won. For some reason, I don't think the opponents are satisfied with the outcome.

That is why I prefer Thomas's objective test instead. An objective test has the best chance of satisfying all sides at it is, by definition, fair and impartial. Regrettably, it seems to me that the opponents are too stuck in their agenda to give serious consideration to Thomas's objective test.

Posted by: realist | Apr 18, 2008 6:31:06 PM

realist wrote: "What Justice Stevens did was nothing less than a full-throated cry for judicial tyranny. It's an opinion so extreme that none of the other liberal justices was willing to join.

Only the radically delusional believe that prohibiting the State from killing its own citizens could ever constitute "tyranny." Tell me, just who is Justice Stevens tyrannizing? Who is he injuring? And what is the harm?

Every time that Justice Scalia has struck down a legislative statute as unconstitutional--and he does so at a much greater rate than does Stevens--he engages in the same exact conduct, substituting his opinion for that of elected representatives. Scalia's criticism of Stevens is an intellectually disingenuous attempt to advance a political agenda. His injudicious opinion and behavior are many times more contemptible than Stevens' honest opinion and should rightly be condemned and derided by thoughtful persons.

Posted by: DK | Apr 18, 2008 11:26:31 PM


"[T]he same exact conduct"? As Justice Scalia pointed out in his concurrence in Baze, the penultimate justification for Justice Stevens is nothing more than his personal experience. When was the last time that Justice Scalia used that same justification to strike down legislative enactments?

I have never claimed that Justice Stevens's opinion was wrong simply because he called for striking down legislation enacted by Congress and more than 30 states. Allow me to repeat myself: "What Justice Stevens did was nothing less than a full-throated cry for judicial tyranny."

My criticism is based primarily on Justice Stevens's justification for his opinion which acknowledges no higher authority. This is the very definition of judicial tyranny.

Not to mention that the methodology in the article you cited is flawed. It takes the liberal perspective that the central government is supreme and hence the most activist conduct possible for the Court is to strike down federal law. For those of us who believe that the Framers created a federal system, that the states reserve vast swathes of authority for the themselves, and that the intent of the Framers was for a system of dual sovereignty, we consider striking down state laws as momentous as striking down federal laws. Once you have a more objective study which takes into account Supreme Court nullification of state laws, let me know. (As exhibits A and B for that new study, I nominate Lawrence v. Texas and Romer v. Evans. 2 acts of lawlessness by members of the Court. Both of which Justice Stevens was complicit.)

I do not define judicial activism as simply when the judiciary overrode the legislature. Rather, I define it as only when the Court makes a decision that goes beyond what the Constitution allows the federal judiciary to do. For example, I suspect one of the data points contained in your cited study must be US v. Morrison. Since I don't believe that Congress has the authority to enact domestic security legislation such as the Violence Against Women Act, (Chief Justice Rehnquist's opinion explains very well why neither the Commerce Clause nor the 14th Amendment grants Congress the power to make such legislation.) striking down part of that act was simply an act in defense of the boundaries between federal and state authority.

Posted by: realist | Apr 19, 2008 1:33:06 AM

realist wrote: ""[T]he same exact conduct"? As Justice Scalia pointed out in his concurrence in Baze, the penultimate justification for Justice Stevens is nothing more than his personal experience. When was the last time that Justice Scalia used that same justification to strike down legislative enactments?"

Personal experience? No. The quote from Stevens' opinion is:

"In sum, just as Justice White ultimately based his conclusion in Furman on his extensive exposure to countless cases for which death is the authorized penalty, I have relied on my own experience in reaching the conclusion that the imposition of the death penalty represents 'the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes. A penalty with such negligible returns to the State [is] patently excessive and cruel and unusual punishment violative of the Eighth Amendment.'" (Emphasis added.)

Evaluating the weight of the State's interests is an analytic process that every judge utilizes, even Scalia. And it isn't new. For an example of this very kind of Eighth Amendment analysis, see Weems v. United States, 217 U.S. 349 (1910). And what on earth makes you think Scalia doesn't rely on his juristic experience? He obviously does, and any protests to the contrary are intellectually dishonest. If Scalia genuinely believes he is doing something different from Stevens, then he is a fool, probably stricken with delusions of grandeur. You can take your pick, depending on whether you want to give him the benefit of the doubt with respect to his candor. In either case, he is a national embarrassment and not to be taken seriously.

realist wrote: "My criticism is based primarily on Justice Stevens's justification for his opinion which acknowledges no higher authority."

And what is Scalia's justification for imposition of his originalist interpretative philosophy on the American public? You must know this can't be justified by anything but the predilections of the individual jurist. Scalia can never escape the accusations he levels with vitriolic abandon at other jurists. That he either lies about it, is not intelligent enough to understand it, or is too afflicted by megalomania to see it does not change that.

As judges go, the best we can ask is that they are as straightforward with us as possible. Stevens is transparent about what he is doing while Scalia conceals the expression of his preferences from the American public through sophistry. (Did you really think it only a coincidence that the implementation of so-called originalism always results in decisions favorable to modern political conservatism?) Because all jurists are, in your terms, tyrants, the former is much less objectionable than the latter.

Posted by: DK | Apr 19, 2008 4:44:55 AM

Is anyone really surprised at Justice Stevens's view? I suppose that the candor is remarkable, and perhaps it's long overdue. But as for the view itself, I'm not sure why this is so shocking.

Has Justice Stevens ever met a death sentence he thought was constitutional?

Posted by: | Apr 19, 2008 7:47:25 AM

The very last paragraph of Justice Stevens's concurring opinion makes me ok with it. Justices often concur to talk about their views of how the law should change, or how they are troubled with the current state of the law.

Justice O'Connor had a good concurring opinion in Republican Party of Minnesota v. White, in which she stated that she thought judicial elections were in fundamental tension with certain other values in the Constitution, like free speech (the question in that case was whether restrictions on campaign speech were permissible--they seemed to be good policy for keeping judges from promising results once they were elected) and the independent judiciary. Even so, she acknowledged that her experience was not the law, and deferred to the rights of 39 states to continue to have judicial elections... though her ultimate point was that the First Amendment would not be bent to accommodate judicial elections.

Similarly here, Justice Stevens finally acknowledges that under the framework the Court has established for dealing with the Eighth Amendment, the executions in Kentucky should go forward.

This is not surprising, and is actually somewhat admirable, as Justice Stevens has shown more interest in stare decisis than any other Justice on the Court, regardless of whether it leads to results he favors. See, e.g., Rangel-Reyes v. United States, No. 05-10706 (U.S. 2006) (statement of Stevens, J., respecting denial of cert) ("While I continue to believe that Almendarez-Torres was wrongly decided, that is not a sufficient reason for revisiting the issue . . . The doctrine of stare decisis provides a sufficient basis for the denial of certiorari in these cases.").

Even so, Justice Stevens seems to be laying the groundwork for a later court (or a later litigant with better evidence) to invalidate the death penalty. Brown v. Board of Education was based in part on the idea that experience (of the country, not of the individual Justices) had shown that segregation was factually inconsistent with equal protection. In other words, Plessy wasn't necessarily wrong on the day it was decided, but that its underlying premises had been shown to be false.

Similarly, Justice Stevens appears to suggest that the premises underlying the Court's decision to reinstate the death penalty may be eroding:

Our decisions in 1976 upholding the constitutionality of the death penalty relied heavily on our belief that adequate procedures were in place that would avoid the danger
of discriminatory application identified by Justice Douglas’ opinion in Furman . . . of arbitrary application identified by Justice
Stewart, , and of excessiveness identified
by Justices Brennan and Marshall. In subsequent years a number of our decisions relied on the premise that “death
is different” from every other form of punishment to justify rules minimizing the risk of error in capital cases. See,
e.g., Gardner v. Florida, 430 U. S. 349, 357–358 (1977) (plurality opinion). Ironically, however, more recent cases
have endorsed procedures that provide less protections to capital defendants than to ordinary offenders.

In his last paragraph, Justice Stevens states that under the court's precedents, "I am persuaded that the evidence adduced by the petitioner fails to prove that Kentucky's lethal injection protocol violates the Eighth Amendment. In other words, the anti-dp movement should continue to gather "evidence" and come back with a better case.

Posted by: | Apr 19, 2008 8:42:38 AM

I forgot a close italics tab. Doh.

Posted by: | Apr 19, 2008 9:00:59 AM

The problem with subjectivity is precisely that, it's subjective. Since there is obviously a disagreement about whether lethal injection is "cruel and unusual", who is to say that the supporters are wrong and the opponents are right?


And if you don't like how they rule, replace them, or amend the subjective language to be objective language.

Posted by: M. | Apr 19, 2008 11:06:50 AM

"....a faulty assumption about the retributive force of the death penalty"
Maybe Justice Stevens got a preview of a report (see the Economist website) on what has been happening in Baltimore.
".... With 282 murders last year among a population of 630,000, Baltimore was one of the most violent cities in America. But since last summer, the killing has slowed. The six months to March this year saw an impressive 28% fewer murders than the same period a year earlier. Mr Bealefeld (Baltimore's police chief) credits smarter policing, and says he is cautiously optimistic that the trend will continue. Mr Bealefeld thinks the murder rate has fallen because the police are paying more attention to the most violent offenders. One helpful new tool is a registry for gun offenders which the mayor, Sheila Dixon, announced last year. Like sex criminals, anyone who commits a crime using a gun must register his whereabouts with the police as soon as he is convicted or once released from jail. Failure to do so can get him imprisoned again for up to a year. The logic is simple. Of the 135 people arrested for murder in Baltimore last year, nearly half had a prior conviction for a gun offence. So it makes sense for police and parole officers to keep close tabs on former gun criminals. Baltimore has learnt from New York's example in the 1990s and now uses computers to create up-to-date maps of where crimes are being committed, so that officers can be sent where they are most needed. Mr Bealefeld is also making more officers patrol on foot. That way, they get to know the people they protect, who may in turn supply them with information."

So, someone has learned what most of us knew already - that the real deterrent to murder is efficient and effective policing, and gun control - a lot more economic and socially friendly than waiting for the murder to happen. One statistic at least that demonstrates the moratorium has had no detrimental effect on murder rates. Empirical evidence that Justice Scalia prefers to turn a blind eye to.

Posted by: peter | Apr 19, 2008 11:14:35 AM

So, someone has learned what most of us knew already - that the real deterrent to murder is efficient and effective policing, and gun control - a lot more economic and socially friendly than waiting for the murder to happen. One statistic at least that demonstrates the moratorium has had no detrimental effect on murder rates. Empirical evidence that Justice Scalia prefers to turn a blind eye to.

Right. X works to reduce crime. Therefore anything that is not X is ineffective in reducing crime. Because everyone knows there can only be one true deterrent to murder. Impeccable logic. I'll print your comment off and mail it to the Supreme Court, and I'm sure that Justice Scalia will resign within the week.

Posted by: | Apr 19, 2008 12:03:16 PM

12:03:16 - I love a smart alec :) - nothing to say so slag off those who do. How self-satisfied you must feel.
The truth is, as has been stated and admitted many times on this site, that selective use of (social science) data (as alluded to by Scalia) is a pointless exercise - the small sample sizes, the theories on which analysis takes place, the often biased starting points of those conducting the exercise, all contribute to an outcome which at best can be said to be no more than a suggestion of influence one way or another. There are as many studies that conclude there is no deterrence factor and as suggest that there is. However, reference to REAL numbers and REAL examples is something else. Your angst appears to be fear that you can be proven to be wrong.
If you are aware of my previous postings over a number of months you will know that I openly state that there are so many factors that influence the crime of murder that looking for any one factor is a complete waste of time. However, the job we assign to the police forces in this country is to both contain and prevent crime - not simply to solve it.

Posted by: peter | Apr 19, 2008 12:43:07 PM

Both "effective policing" and harsh punishments are jokes for deterrence. They will always be marginal, at best, and those who advocate for them as the sole or primary means by which to protect people are doing nothing more than callously serving up others to die.

Deterrence requires ameliorating the conditions that cause crime, e.g., rampant poverty, gross income and wealth inequality, and the systematic deprivation of stable housing, education, food, and mental and physical health care to our citizens. Of course, if we did this, we probably couldn't go parading around the world killing foreigners for corporate geostragetic interests, but that's why we call them priorities. Ours are seriously--severely--out of whack.

Posted by: DK | Apr 19, 2008 1:54:29 PM

DK - totally agree with you that the conditions in which people live - physical, economic and social - are at the root of much crime - but so too are the attitudes of those who should be taking responsibility for managing and ameliorating the effects of those conditions. Unfortunately, many people still are not prepared to sacrifice a little of their own wealth and security to help those at the margins. But we should also acknowledge that these things are by no means the only motivations or causes of crime.
Policing is important, but it needs a degree of professionalism and focus that is not always apparent - often because of under-funding and under-training. The example I gave showed vividly how a change in focus can make a significant contribution.
But what is certain is that exterminating by execution a few basically randomly selected individuals, in conditions that are known to be unreliable, and have the potential for legally wrongful killing by the state, contributes virtually nothing at all to the aim of reducing the crime of murder. What that practice does do is fuel on the one hand the thirst for extreme retribution for its own sake, and on the other, fuel the revulsion that a developed and sophisticated country like the US could imagine that such barbarism is appropriate in the 21st century.

Posted by: peter | Apr 19, 2008 2:39:09 PM

Thank you, anonymous poster, for pointing out that Justice Stevens CONCURRED in the judgment of the court upholding the constitutionality of execution by injection with poison. Those who so delight in accusing Justice Stevens of judicial tyranny have overlooked this small fact. Newsflash to pro death folks: you WON. (In fact, you've always won, with exception of four years in the seventies.) It's all good, you can stop spewing and resume dancing on the graves of those the Authority has killed.

Posted by: TresEquis | Apr 21, 2008 1:54:33 PM

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