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Berry on Judicial Restraint & the Death Penalty

By Lawrence Solum

William W. Berry III (University of Mississippi School of Law) has posted Powell, Blackmun, Stevens, and the Pandora?s Box Theory of Judicial Restraint on SSRN. Here is the abstract:

In recent years, three Supreme Court justices, Powell, Blackmun, and most recently, Stevens, have all called for the abolition of the death penalty, repudiating their prior views on capital punishment. This article attempts to understand these reversals not as normative shifts on the propriety of capital punishment, but instead from an institutional choice perspective. In other words, these justices decided to abandon the death penalty not because they changed their view on its morality or efficacy. Rather, the justices changed their conception of judicial restraint with respect to the Eighth Amendment. They each moved from a position of complete deference to state legislatures to regulating state legislatures? use of capital punishment before ultimately deciding to remove the ability of state legislatures to use the death penalty altogether.

This article argues, then, that the shift that has occurred is one as to the justices? views of the appropriate role of the Court in interpreting the Constitution to apply to states? legislative schemes. Further, the article argues that this shift is a paradigmatic example of the ?Pandora?s box? principle of judicial restraint ? that the decision to constitutionalize a particular area of state regulation has the consequence of placing the Court in the difficult position of trying to regulate a series of intractable problems on a case-by-case basis. Finally, the article argues that the application of this principle in the context of the death penalty, in light of the understanding that ?death is different? and the high volume of error in capital cases, largely explains why all three justices reached the same conclusion that the death penalty should be abolished.

Interesting thesis!

Full post as published by Legal Theory Blog on March 05, 2010 (boomark / email).