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Monday, June 09, 2008

"Judicial Fiat" and Judicial Humility

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.

Posted by amsiegel on June 9, 2008 at 01:52 PM in Constitutional thoughts, Criminal Law | Permalink


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I think Scalia wants us to think that he is making such a theoretically pure argument, Ashland, but notice that he is only getting on the case of Justice Stevens (whose conclusion he detests) rather than the rest of the Court (sometimes including him) who routinely apply the Cruel and Unusual Punishment Clause in an evolutionary way (particularly in the death penalty context). This gets at a bigger point about the way Scalia writes--he drops in lots of Limbaughesque soundbites about the Court usurping the legislative role and deciding things for itself and ruling by fiat, but in the end he--like every other member of the Court--understands that the Justices must use judgement in applying the broad phrases of the Constitution ("cruel and unusual punishment," "equal protection of the laws," "due process of law") to the facts of specific modern controversies.

Posted by: Andrew Siegel | Jun 10, 2008 12:30:05 PM

Justice Scalia's argument with Justice Stevens is somewhat more narrow. In its jurisprudence, the Supreme Court has declared that whether something is cruel and unusual punishment is solely the prerogative of the Court. The Court takes note of what legislatures and others do, but the Court declares what it decides is unconstitutional under the Eighth Amendment by its own lights. That is what constitutes the "pure[] expression . . .of the principle of rule by judicial fiat."

Posted by: Ashland | Jun 10, 2008 12:20:17 AM

From what I can understand, Justice Stevens shared very similar concerns about the death penalty with late Justice Blackmun. Both thought it was very much states role to enact punishments that fit the crime. Death penalty is constitutional in their eyes if applied properly.

It's the application of the death penalty that they deem unconstitutional. Both spend countless years on the court trying to make it fairer, less abitrary but given the gulf between the liberal and conservatives , it was never going to happen.

I blame this partly on Justice Brennan and Marshall, the death penalty opponents, and the politicians who bend to suit popular opinions. If Justices Brennan and Marshall were willing to compromise, they might have been able to put in more safeguards for the system and render the death penalty a rarity.

While I understand that the death penalty lawyers are trying to save their clients, their tactics and meritless claims irked the conservative side of the court. When you coupled that with Brennan and Marshall's stance of granting stays for any death penalty cases, it was bound to cause the court to divide even further.

Lots of people critize Justice Stevens for announcing such a radical stance on death penalty but the key is even when he thought it was unconstitutional , he upheld the judgement for stare decisis purposes and if that's not judicial modesty and restraint , I really don't know what is. For that alone, I'll always have respect for him as a justice.

Posted by: Chee Foong Chew | Jun 9, 2008 4:24:05 PM

One of Justice Scalia's major issues (if I remember) is that the death penalty cannot simply "become" unconstitutional, as proponents of a "living Constitution" might argue.

It is not that the death penalty as used by states is constitutional or unconstitutional - federalism forbids the U.S. Supreme Court to truly say anything about it at all. There isn't even federal legislation for Justice Steven's to lean upon, much less

Posted by: Jonathan | Jun 9, 2008 3:27:39 PM

I haven't read the opinions you refer to, but I imagine the point of disagreement between you and Scalia is based on differing conceptions of the role of the judiciary. Scalia, I think, sees the judiciary as a co-equal branch of government charged with interpreting the law of the land and applying it in actual, specific cases or controversies, not as a supervisory body that reviews policy and can decide that enough is enough based on Kant or "our most basic constitutional values" without much explication of the text of the Constitution itself.

Under the latter view, deferring to the other branches is "humility"; under the former view, it is irrelevant.

Posted by: J | Jun 9, 2008 2:34:58 PM

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