Redstate

Like Oil and Water

By Leon H Wolf Posted in Law — Comments (7) / Email this page » / Leave a comment »

Dan already covered this earlier this week, but I wanted to say a few more things about Justice Stevens as a "conservative" in light of Ed Whelan's remarks which illustrate that Justice Stevens is apparently incapable about being honest about his own judicial legacy. Whelan notes:

Stevens claims to be a “judicial conservative,” which (according to Rosen) “he defined as someone who tries to follow precedents and ‘who submerges his or her own views of sound policy to respect those decisions by the people who have authority to make them.’”

Anyone who has watched the court for any length of time knows that this is not what Justice Stevens does, and Whelan does a good job of pointing out some examples of Stevens putting his own policy preferences before the decisions of people who have authority to make them. However, it is important to note that in several prominent opinions, Justice Stevens has flatly admitted that he was imposing his own policy preferences and disregarding decisions made by those in proper places of authority.

Read on...

A little background on Eighth Amendment jurisprudence is in order here. Early Eighth Amendment cases, all the way up until the 1910 case of Weems v. United States interpreted the Eighth Amendment to mean what it says - the Constitution prohibits "cruel and unusual punishment." What constituted punishment that was "cruel and unusual" was generally understood to constitute punishments considered "cruel and unusual" at the time of enacting the bill of rights - the rack, thumbscrews, torture, etc. However, in the landmark case of Trop v. Dulles, the court stated in dicta that the Eighth Amendment should be interpreted in light of "evolving standards of decency," rather than the understanding of "cruel and unusual punishment" that the framers, or the original ratifiers of the Constitution had.

Since that time, Eighth Amendment jurisprudence has undergone a number of horrible mutations, most of which are not germane to this discussion. However, one of these mutations involved a strain of cases which held that the death penalty was unconstitutional when applied to certain classes of offenders (the mentally retarded, the insane, those under 16, those under 18). I'm skipping a lot of really bad jurisprudence that allowed to court to reach the tortured position that the Eighth Amendment prohibits punishments that in and of themselves are not cruel and unusual, but should not be applied to certain convicted criminal offenders. You can read some of it here, and here,, and the culmination of this horrible line of cases here, in what is, for my money, one of the five worst Supreme Court opinions of all time.

Well, let's come back to Justice Stevens. When determining whether "evolving standards of decency" prohibit a certain kind of punishment, the Supreme Court generally takes a head count of state legislatures to determine whether a given state's law is "out of bounds" with what the other states are doing. Numerous opinions in this line of the Court's jurisprudence are careful to point out that "evolving standards of decency" should be informed by objective factors (the enactments of legislatures and actions of juries) to the greatest extent possible. However, in Coker v. Georgia, Justice White (in one of his more unfortunate turns of phrase) declared that not only should the Court look to such objective indicia, but also that the independent judgment of the Justices of the Supreme Court should be brought to bear, and that this independent judgment should effectively control.

The arrogance of that statement is shocking to anyone who believes in the principle of representative democracy. In other words, if all 50 states believe that it's permissible to, for instance, use the electric chair, but five Justices of the Supreme Court believe, in their "own judgment," that it violates "evolving standards of decency," then it can be struck down.

Fast-forward twenty-five years, to Atkins v. Virginia, an opinion authored by Justice Stevens. There, the court considered whether "evolving standards of decency" categorically prohibited executing the mildly mentally retarded. Justice Stevens was forced to point out that the majority of death penalty jurisdictions allowed the execution of the mildly mentally retarded. Justice Stevens frankly conceded that he felt free to disregard, and in fact *did* disregard, the decisions made by those duly elected to decide whether the mildly retarded should be executed: state legislators:

We also acknowledged in Coker that the objective evidence, though of great importance, did 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."

...

Thus, in cases involving a consensus, our own judgment is "brought to bear," Coker, 433 U. S., at 597, by asking whether there is reason to disagree with the judgment reached by the citizenry and its legislators.

Guided by our approach in these cases, we shall first review the judgment of legislatures that have addressed the suitability of imposing the death penalty on the mentally retarded and then consider reasons for agreeing or disagreeing with their judgment.

In the end, it is surprising to no one who reads this that Justice Stevens' own personal policy preference overrode the decisions of 19 state legislators - and not only that, the decision of the Supreme Court itself from just just 13 years earlier. As Justice Scalia noted in Atkins:

Today's decision is the pinnacle of our Eighth Amendment death-is-different jurisprudence. Not only does it, like all of that jurisprudence, find no support in the text or history of the Eighth Amendment; it does not even have support in current social attitudes regarding the conditions that render an otherwise just death penalty inappropriate. Seldom has an opinion of this Court rested so obviously upon nothing but the personal views of its members...

Beyond the empty talk of a "national consensus," the Court gives us a brief glimpse of what really underlies today's decision: pretension to a power confined neither by the moral sentiments originally enshrined in the Eighth Amendment (its original meaning) nor even by the current moral sentiments of the American people. " `[T]he Constitution,' " the Court says, "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 7 (quoting Coker, 433 U. S., at 597) (emphasis added). (The unexpressed reason for this unexpressed "contemplation" of the Constitution is presumably that really good lawyers have moral sentiments superior to those of the common herd, whether in 1791 or today.) The arrogance of this assumption of power takes one's breath away. And it explains, of course, why the Court can be so cavalier about the evidence of consensus. It is just a game, after all. "[I]n the end," it is the feelings and intuition of a majority of the Justices that count--"the perceptions of decency, or of penology, or of mercy, entertained ... by a majority of the small and unrepresentative segment of our society that sits on this Court."

Scalia is often criticized for his over-the-top rhetoric about his fellow justices, but in this case, it's difficult to disagree since Stevens himself admitted to imposing his own judgment over and above legislative enactments. For Stevens to now say, five years later, that his whole job on the court is to do the very thing that he has expressly disavowed in an prominent opinion smacks of intellectual dishonesty and pure political hackishness.

Of course, that would merely indicate that really not much about Stevens has changed at all since 1975.