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. 

Replacing Justice Stevens

Upon the announcement that Justice Stevens is indeed retiring from the Court, Senate Republicans immediately began to offer their views on the future nominee. According to Senator McConnell, for example, "Americans can expect Senate Republicans to make a sustained and vigorous case for judicial restraint and the fundamental importance of an even-handed reading of the law," while Senator Lamar Alexander warns that "I hope President Obama will nominate his successor from the middle and not from the fringe. His nominee will be fairly and respectfully considered. The question is not whether the president's nominee is politically 'on my side,' but whether he or she is well-qualified and has a record of being impartial." In case anybody missed the implication, he added: "In truly extraordinary cases, I reserve the prerogative to vote no on confirmation or even to vote to deny an up-or-down vote."

The writing is already on the wall, and I can only conclude one thing: it stinks to be a progressive.

When Republican presidents nominate justices, they usually pull no punches: think here of the present conservative majority on the Court. Justices Scalia and Thomas are "impartial and even-handed" in the same way that I am from Mars. The same goes for Justice Alito and Chief Justice Roberts. Yet somehow Republican presidents appointed them to the bench and Senate majorities confirmed them. No talk of filibusters then, but rather, of nuclear options and a fair vote.

In contrast, Democratic nominees are quite tame in comparison. There is simply no way to look at Justices Breyer, Ginsburg and Sotomayor and think of them as ideological counterweights to Scalia and Thomas. Case in point: the conservative majority on the Court is so far to the right that a year ago, with Justice Souter on the bench, two of the four "liberals" were appointed by Republican Presidents. What does that say about the ideological commitments of this majority?

This is simply maddening (or, depending on your point of view, a brilliant political strategy, nurtured and developed over time). The conventional wisdom portrays any Democratic nominee as an activist, yet "conservative" nominees are "strict constructionist with deep respect for the rule of law." This is a blatant canard, but one with a lot of purchase where it matters. This is the main reason why conservatives can go to the far right, to the fringe of the party, and grab anybody they want, and liberals must come to the center. Conservatives can choose Justice Alito, but liberals can barely get Justice Sotomayor (I imagine those 31 Senators voting against her would only have supported President Obama's nominee if she had been Harriet Miers).

It is clear that the Republicans hold the upper hand and will continue to do so until the Democrats get a backbone. In case any further proof is necessary, see, for example, Dawn Johnsen's failed nomination to head the Office of Legal Counsel. In the aftermath of John Yoo's and Jay Bybee's stint in this office, I didn't think there would ever be any Republican objection to a Democratic nominee for the foreseeable future. I was clearly wrong, by a mile.

If Democrats had a backbone, they would nominate Pam Karlan, even Diane Wood. That is why Tom Goldstein wrote back in February that Elena Kagan is a "prohibitive favorite" or, according to Elie Mystal at Above the Law, the "front runner."

This is depressing and even "harmful," but not terribly surprising. Guy has much more to say about nominating Kagan, and I look forward to his future post on the subject. For the moment, I will only offer the following, written by Tom Goldstein last October: "I don't know anyone who has had a conversation with [Elena Kagan] in which she expressed a personal conviction on a question of constitutional law in the past decade." That is not disqualifying, to be sure, but hardly something that should instead elevate a person to the select realm of Supreme Court nominee.

Justice Stevens' Views on the Court, Dissenting, and Judicial Behavior

Will he do it, or won't he? That is the big question surrounding Justice Stevens rumored retirement from the Court. In an interview published yesterday by the New York Times, Justice Stevens shed very little light on that question.

Three other things he did say caught my attention.

Note first how the "wise Latina" controversy was much ado about nothing (shocking, I know). According to Justice Stevens, “I’ve confessed to many people that I think my personal experience has had an impact on what I’ve done. . . .Time and time again, not only for myself but for other people on the court, during discussions of cases you bring up experiences that you are familiar with.” In so many words, this was the view expressed by Justice Sotomayor that brought her so much criticism. I wonder whether Senator Sessions and the conservative talking heads will come after Justice Stevens for this comment. Then again, maybe they objected not to the notion that personal experience influences judging, but the fact that the Latina would be a "wise" one.

On the issue of judicial behavior, turns out that Justice Stevens comes quite close to the Chief Justice's view, expressed during his conformation hearings, that a judge only calls balls ands strikes, nothing more. In reference to the controversial Kelo case, Justice Stevens was relieved that he was not a legislator, so he would not have to decide how this issue should ultimately come out. He added: “One of the nice things about this job is that you don’t have to make those decisions” . . . . “Very often you think, in this particular spot I don’t have to be deciding the really hard case about what should be done. Which is one of the reasons why the function is really quite different from what people often assume.”

Not sure that I have much to add to this point, other than to wonder out loud whether Justice Stevens could possibly be serious, or just playing to his audience. In light of that comment, I wonder how he would explain the recent Citizens United case, or the Court's jurisprudence under the Voting Rights Act, or the Court's race jurisprudence under the Fourteenth Amendment. The functions may be different, and so are the processes, but the end result is functionally the same: strategic policymaking. I am not sure how anyone intimately familiar with the Court's inner workings could hold any other view.

His views on the role of dissent is also eye-opening. Once the Court decides an issue, he explained that he would no longer continue to dissent in future cases, as Justices Marshall and Brennan would do in death penalty cases. This is because “I’m still a member of the court, and I still have to work.” Maybe so. But Marshall and Brennan are hardly the only ones who would follow this approach -- see for example, Justice Thomas many concurring opinions in Section 2 cases under the Voting Rights Act, which refer to his earlier criticism in Holder v. Hall, or the many dissents by Justices Kennedy, Thomas and Scalia in campaign finance cases. Of note, these dissents culminated in the recent Citizens United case. Similar dissents might also lead to an overturning of the Voting Rights Act. If this is what being a "a member of the team" is, I wonder what being a member of the opposite team looks like.