In Sunday’s New York Times, Adam Liptak “settles [a] legal mystery:” how to explain Justice Stevens’ vote to reinstate the death penalty in 1976 and his shift in 2008, when he wrote that he believed the death penalty to be unconstitutional? To the untrained eye, this might appear to be a puzzle indeed. If the Constitution is but an unchanging legal document, and the Justices’ job is akin to legal archaeology, how to explain any change in legal doctrine, not to mention changes of heart among particular justices?
Justice Stevens’ answer is uneventful: changes in the composition of the Court, coupled with what he labeled “regrettable judicial activism,” led to a system that is no longer constitutional. In other words, a process that once could withstand constitutional scrutiny was irretrievably damaged by allowances made by the Court itself. This is a process, Liptak writes, “shot through with racism, skewed toward conviction, infected with politics and tinged with hysteria.”
But clearly this is no mystery.