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.