Over at Concurring Opinions, my thoughtful colleague Alice Ristroph wonders why I was willing to criticize Justice Stevens' opinion in Baze v. Rees without mentioning that he ultimately voted to uphold the death sentence in that case. She wonders: "Is the argument that a judge musn’t even say that he thinks a practice violates the constitution, even if he is then going to recognize and follow precedents to the contrary?"
Perhaps I could have been clearer in my earlier post, but I have no problem with any judge expressing their point of view of constitutional or other issues. I did that a few times myself as a judge, as Ristroph points out. My problem with Justice Stevens' views that the death penalty is (now) unconstitutional (and I think Orin's as well) is that Stevens is simply wrong on the merits. Judges certainly have a right to speak on legal issues ... but they should be be right on those issues.
Related Posts (on one page):
- A Judge's Right to Speak ... Versus Getting Things Right
- Why Baze v. Rees Should Not Lead to Endless Litigation:
- Thoughts on Baze v. Rees:
- Must-Read Scalia Opinion
- Supreme Court Upholds Execution Protocol:
Do you have a problem with judges expressing themselves via judicial opinions? Justice Stevens has many avenues available to him to express his views on any issue: he is free to write a book, give lectures or TV interviews, write newspaper op-eds, or give out handbills on the Supreme Court steps. What he should not do is embed his personal views into an official "opinion of the supreme court", when they are not part of the ruling [by this I don't mean the controlling "Opinion of the Court", of course, but the total writing produced by the justices].
Let as assume for the sake of argument that the death penalty might be unconstitutional. Nevertheless, the question of constitutionality was not before the court. Would you have the same reaction if this passage was embedded into one of the tax cases annouced on the 15th?
So Scalia's counterargument to Steven's argument cannot be praised with noting that Stevens apparently felt that the issue in question was not before the court? It seems that Stevens has a clear opinion about the death penalty that can be criticized on the merits, regardless of the outcome of the case. To criticize Mr. Cassell for failure to note a fact extraneous to the discussion is petty.
So Cassell's position has got to be that it is simply beyond the pale to even intimate that capital punishment is unconstitutional. But why would this be? I do realize that the Constitution, by negative implication, seems to permit it. But let's say that it could be established that there was no way to execute people that was not cruel and unusual. (I am not claiming this has been established, I am just assuming it.) Wouldn't the specific text of the Eighth Amendment prevail over the negative implications elsewhere in the Bill of Rights in that circumstance?
And once you get there, Stevens' position is simply arguing the mixed question of law, fact, and opinion over whether or not there can be circumstances where the death penalty can be administered in a manner that is not cruel and unusual. He's either right or wrong about that, but it seems to be a complicated enough issue that he shouldn't be condemned for expressing himself in the manner he did.
In short, he followed precedent, expressed an opinion without allowing it to affect his vote, and supported his opinion with an argument that makes a colorable case. What's the problem, unless there is simply a form of conservative political correctness at work that says that no judge may question the death penalty?
Huh? Doesn't this post clearly say that Cassell doesn't object to Stevens "expressing himself the way that he did"? Cassell just disagrees with Stevens' opinion on the constitutionality of the death penalty.
Cassell: "Judges certainly have a right to speak on legal issues ... but they should be be right on those issues." -- Scalia and Stevens being simultaneously right is plainly impossible, indicating why they should both have refrained from expressing their opinions.
To take the analogy way too far, if many umpires opine that the balk rule is too vague to implement uniformly, I would take that as very strong evidence that the rule needs to be revised. Of course, I fully expect them to continue to call balks based on the rules as best they can but it does no harm to express that they have no confidence that they are doing so fairly.
And my problem with Cassell is he seems to want to cut this off at the pass, implying that it isn't a close question or that the apparent textual authorization of capital punishment ends the inquiry. But neither of these things are true.
Any support for this at all? Cassell says--in his short post on which you're commenting--"I have no problem with any judge expressing their point of view of constitutional or other issues. I did that a few times myself as a judge, as Ristroph points out."
Um, it's Scalia's and Stevens' job to decide the constitutionality of the death penalty.
Not sure who the "um" comment is directed at, but I don't disagree.
You totally missed the point Alice was making. She commented on the use of the word "fiat." Perhaps you should re-read her post and update accordingly.
I'm fine with Orin, Orin. (Who is not me, incidentally.)
It's like saying any fine is unconstitutional because it's excessive. The Constitution doesn't require "fines," it just prohibits excessive ones. If every fine is, by definition, excessive then there's not much left to say about legal interpretation here.
Now, I respect the position that changing facts and circumstances are incapable of rendering a previously constitutional method of punishment C&U. The question of how normative phrases in the Constitution are to be applied is as solid an interpretive question as can be asked. It is, however, unfair to hide that particular bone of contention behind the phrase "objectively wrong since the Constitution explicitly recognizes the death penalty -- this seems to be like a caricature of his position, not a substantive response.
If all Cassell is saying is that Stevens is wrong on the merits of his opinion, (1) why did he say that Stevens shouldn't have said it at all-- does he believe that no Supreme Court justice should ever express an opinion that Cassell disagrees with?; and (2) why is it that commenters like Nunzio, on the opposite side of this issue, interpret the comment exactly as I do (i.e., that the death penalty is textually permitted and therefore it can never be cruel and unusual no matter the facts regarding its implementation)?
Again, he doesn't say this. Again, show me where he says this.
why is it that commenters like Nunzio, on the opposite side of this issue, interpret the comment exactly as I do (i.e., that the death penalty is textually permitted and therefore it can never be cruel and unusual no matter the facts regarding its implementation)?
Your description of Nunzio's comment ("i.e., ...") does not support your view that Cassell is saying that Stevens shouldn't have spoken at all.
According to Scalia in Herrera v. Collins, no. (The majority rejected Scalia's position.) But then, that opinion is excellent evidence of Scalia's biggest weakness as a judge-- it isn't a sign of your high principle and uncorruptibility, as Scalia seems to think, that you are willing to reach terribly unjust results in cases in the name of your principles. It's just a sign that you have the wrong principles.