Legal Commentary

Joining a blog early in June to comment on the Supreme Court's concluding term is usually a safe bet.  Certainly, last year, I had any number of subjects teed up to go.  As others have noted, however, thus far this has been a relatively slow and themeless Supreme Court term.

While I await the fireworks sure to come when the Court hands down its decisions on the Second Amendment, the rights of detainees, and the death penalty for child rape, I wanted to get in my two-cents on this year's latest installment of the Stevens-Scalia smackdown.  (I don't know about you, but every time I read one of Scalia's diatribes about Stevens's methodology, I hear a boxing promoter breathlessly intoning "This Time It's Personal!".)

The context this time was Justice Stevens's conclusion that--while he will continue to vote to apply the Court's precedents--he now believes that the death penalty is unconstitutional.  Justice Scalia was quick to respond, labelling Stevens's new position not only wrong but also fundamentally illegitimate.  At the conclusion of his unusually personal rejoinder, Justice Scalia commented "Purer expression cannot be found of the principle of rule by judicial fiat."

Now, the constitutionality of capital punishment is a hot-button issue on which I am not going to be able to influence a single soul.  So, I wouldn't even comment on the merits of the issue.  What I want to talk about is the accusation that Justice Stevens's position is a "pure[] expression . . .of the principle of rule by judicial fiat."  I think that accusation is ahistorical, factually incorrect, and theoretically flawed.  After the jump, I'll try and explain those claims and to defend the counter-intuitive claim that Justice Stevens's evolution on the death penalty is actually reflective not of judicial fiat, but of a profound judicial humility.

When Justice Stevens joined the Supreme Court in 1975, the great majority of the Court had reached the conclusion that the death penalty was, at a minimum, constitutionally suspect.   That conclusion was not arrived at on a whim but after several years of minute evaluation of the then-existing system of capital punishment.  The argument against the death penalty was fairly simple:  It was an archaic relic of an earlier age in which a sovereign's power over his subjects was absolute.  In a Kantian political universe that values the dignity and inherent worth of every human being, the burden is on those trying to justify such an extreme application of state violence.   And the existing arbitrary, standardless, racist, patchwork system made a mockery of those concerns.

The question that divided the Supreme Court when Justice Stevens joined the bench was not whether there are special constitutional concerns with the death penalty, but what to do about them.  There were some on the Court who believed that the State could not possibly carry its burden and justify the death penalty; there were other who thought that--despite their utter failure up to that point in time--the states ought to be given another chance to design a system for imposing death that was rational, even-handed, and limited to situations in which the state's interests were especially strong.

After much soul-searching, Justice Stevens cast his lot with the latter group, casting a crucial vote for allowing the popular branches another go at designing a death penalty that was consonant with the rule of law and the dignity of all individuals.  For thirty years, despite the mounting evidence that states were failing, he held to that commitment.  Indeed, at various points along the way, he spoke explicitly to state legislatures, explaining the procedures and limitations that might create such a workable system (for example, pointing out that both racial and geographic disparities tend to disappear when the death penalty is focused on the most heinous crimes).

Nevertheless, the evidence continued to mount that the experiment was a failure.  Outrageous racial disparities persisted.  Innocent people were sent to death row.  States failed to narrow the punishment to the worst of the worst.  The clamor for death distorted the jury pool so that the most skeptical elements of the community were excluded from even the guilt phase.  And, perhaps most tellingly, the states failed to marshal any significant evidence that the death penalty seriously advanced important state interests.

Thirty years ago, Justice Stevens sided with the humble Justices, preferring to give state legislatures every opportunity to develop a death penalty system that comports with our most basic constitutional values.  Their sincere hope--and here I emphasize "sincere"--was that states who wanted to maintain the death penalty would develop careful procedures for a leaner, more deliberative, more evenhanded system.  The Court would be a backstop, not the prime actor.   That the states failed to live up to their end of the bargain is their fault, not Justice Stevens's.