I'll second my co-blogger Jonathan Adler's criticism of Dahlia Lithwick's latest column, and I'll add another concern: the apparent lack of evidence to support Lithwick's central thesis.

  Lithwick's claim is that the Supreme Court "looks grievously out of step" with public opinion on the death penalty: "In a curious application of Newtonian physics, public and state support for capital punishment is steadily declining in America just as the resolve to maintain the death penalty seems to be hardening" at the Supreme Court.

  But what's the evidence for this? As Lithwick acknowledges midway through her column, a majority of the Court has had surprising success narrowing when capital punishment can be imposed. Still, Lithwick tries to make the case that the Court is "out of step" in the sense of having "resolve" to maintain the death penalty. As far as I can tell, here are the four examples she uses to support the claim:

  1. In one recent case the Supreme Court overturned a capital conviction but Chief Justice Roberts wrote a dissent.

  2. In a 2005 case the Court overturned another capital conviction, reversing a decision written by then-Judge Samuel Alito.

  3. In a capital case last year, Justice Scalia wrote a concurrence that included very heated rhetoric.

  4. In a recent oral argument, Chief Justice Roberts asked a question that seemed to question some of the Court's recent decisions that increased judicial scrutiny of the death penalty.

  I'm not sure why any of these examples are supposed to establish that the Court is out of step with public opinion (assuming, for purposes of this post, that this would be a criticism if true). Granted, it suggests that some individual Justices favor narrowing the role of the courts in the implementation of the death penalty. But none of the evidence actually seems to go to the question of what a majority of the Court has done. And to the extent Lithwick's point is that the Court may change its direction in the future, surely the same can be said about the direction of public opinion.

  UPDATE: Ed Whelan adds more thoughts here.