A Word on the "Mystery" of Justice Stevens' Change of Heart on the Death Penalty

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. 

Rather, this is the stock and trade of the judicial role, especially at the Supreme Court level.  For those cases the Justices care deeply about, their own attitudes and policy goals make all the difference in the world.  When Justice Scalia writes that racial preferences are odious and unconstitutional, what he means is that racial preferences are objectionable and odious to him, and thus somehow, someway, they are also unconstitutional.  When Chief Justice Roberts writes that “it is a sordid business, this divvying us up by race,” he means that he is personally appalled and disgusted by it and, relatedly, the practice must also be unconstitutional.  The details – whether the framers of the 14^th Amendment might agree, or whether the text of the Amendment supports their position – are unimportant.

The same goes for the gun control cases (Heller and City of Chicago), or the recent federalism “revolution” (Lopez and City of Boerne, to name two prominent examples).  The same was true for the Citizens United case, and will be true for the upcoming constitutional challenge to the Voting Rights Act.  There is no mystery here, only judicial attitudes, strategic decision-making, and the need to reach five votes.

The better question goes back to the beginning and the lore that surrounds the canonical Marbury v. Madison.  Life tenure for our federal judges hinges on the value of judicial independence and the idea that judges are performing a legal function.  We accept the idea that it is the Court’s job to “say what the law is” because we understand the Court as interpreting law, not asserting its will.  This is the understanding that undergirds Stevens’ “mystery.”  Once we come to understand the Court as a political institution, influenced by law, to be sure, but driven by politics more so, the value of independence diminishes in turn. 

Of course, this is not news, and for proof, one need only look at the backlog in judicial confirmations.  Rather than bemoan the slow pace of Senate confirmations, the question to ask is, why should we expect the Senate to behave any differently?