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April 11, 2010

Is Justice Stevens the greatest (or most significant or ___) sentencing Justice of all time?

Especially given that Justice Stevens has three more months of important work left in his Supreme Court tenure, I am disinclined to spend too much time right now reviewing his extraordinary record and legacy as a Justice.  Nevertheless, I think it is worth noting even now that Justice Stevens necessarily has a unique and special place in the history of sentencing jurisprudence.  Let me explain.

Justice Stevens will retire this year as the only Justice to have had a central and enduring role in both the revolution of capital sentencing doctrine through the Eighth Amendment jurisprudence of Gregg and its progeny and in the revolution of non-capital sentencing doctrine through the Sixth Amendment jurisprudence of Apprendi and its progeny.  For this reason alone, it seems reasonable to call Justice Stevens the greatest -- or the most significant or some other accolade -- sentencing Justice of all time.

Does this sound right, dear readers?  Is there a more fitting (and perhaps less controversial) adjective than "greatest" to describe Justice Stevens' work in sentencing cases over the last 35 years?

April 11, 2010 at 06:56 PM | Permalink


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I personally hate the phrase "of all time" since time isn't over yet. It smacks of the same hubris that drives the NFL to describe the Superbowl winner as "world champions" which just happens to overlook the fact that 80% of the planet doesn't even play the sport.

So let's just say that Stevens is the greatest sentencing justice in living memory.

Posted by: Daniel | Apr 11, 2010 7:13:32 PM

He certainly bears a greater share of the responsibility for the present state of capital punishment law than any other person, due to his role as the "swing vote" in the late 70s and being one of five as late as Penry in 1989. That does not, however, constitute greatness IMHO. If he had simply joined Justice White's opinions in Gregg and its companion cases, an enormous amount of injustice could have been avoided.

Posted by: Kent Scheidegger | Apr 11, 2010 10:01:14 PM

"If he had simply joined Justice White's opinions in Gregg and its companion cases, an enormous amount of injustice could have been avoided."

Or an enormous amount of injustice would have resulted, depending upon your point of view.

Posted by: JC | Apr 11, 2010 10:41:36 PM

Accepting your word, Stevens architected the current death penalty, then no. A disaster. Stevens is an incompetent as a Justice, but the greatest in only one sense.

The death penalty case law today is perfect to generate $billions in appellate make work for lawyers and judges. Its dose is too low to affect crime. And its cost is too high to encourage its proper dose.

High cost, no benefit. That is the definition of rent seeking. Because rent seeking is really and literally, armed robbery, Justice Stevens is a master cult criminal.

Great Justice, if one is a lawyer. Lawyers in other specialties may say, I have nothing to do with this area. If the jobs of the death penalty appellate lawyers were eliminated, they would enter the job market and drive down other lawyers' salaries.

Posted by: Supremacy Claus | Apr 12, 2010 5:04:12 AM

Justice Stevens is certainly the “greatest,” if “great” is equated with significant impact. If “greatest” means that he got the law right every time, then it’s more debatable.

Personally, I think he got the Apprendi line of cases right, but the Gregg line of cases wrong.

Posted by: Marc Shepherd | Apr 12, 2010 9:42:05 AM

Justice Steven's is most certainly the best sentencing justice, of today and past. Im sure it will be a long time, until someone surpasses him.

Posted by: N/A | Apr 12, 2010 3:28:29 PM

I am partial to Stevens'concurrence in Jones v. U.S., 526 U.S. 227 (1999). Souter wrote the majority. Footnote 6 of the Majority recites the law and jurisprudence adopted by Apprendi.

Posted by: mpb | Apr 12, 2010 4:49:05 PM

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