Monday, November 29, 2010

Justice Stevens on the Death Penalty and Stare Decisis

By Mike Dorf

As reported in the Sunday NY Times, retired Justice John Paul Stevens has written a review essay in the NY Review of Books in which he explains why, over the course of his time on the Supreme Court, he came to think that the death penalty was unconstitutional.  (The essay is a review of David Garland's new book, Peculiar Institution: America's Death Penalty in an Age of Abolition.)  In a nutshell, when Stevens joined fellow centrists Potter Stewart and Lewis Powell to co-author the lead opinion in Gregg v. Georgia in 1976, he anticipated that the procedural safeguards that opinion required would be followed.  However, over the ensuing decades, as the Court turned more conservative, Gregg was watered down and other claims that had merit were rejected.

That, at any rate, is a nutshell of the Times story.  The actual essay says a good deal more, and is well worth reading.  Here I want to focus a bit on what Justice Stevens says and implies about stare decisis.  Justice Stevens complains that as new, more conservative Justices joined the Court, they did not respect precedents that tempered the administration of the death penalty.  Exhibit A is the Court's 1991 decision in Payne v. Tennessee, holding that a state could introduce victim-impact evidence at the sentencing phase of a capital trial.  Stevens thought, as he wrote in his dissent at the time, that this ruling was quite a departure from basic principles of culpability.  In his NY Review essay, he also laments the fact that Payne overturned Booth v. Maryland, decided just four years earlier, and South Carolina v. Gathers, decided just two years earlier.  Echoing Justice Thurgood Marshall's Payne dissent, he attributes the volte-face to a simple change of personnel.  Justice Stevens says that the willingness of new appointees to overrule Booth and Gathers reflected "
regrettable judicial activism and a disappointing departure from the ideal that the Court, notwithstanding changes in membership, upholds its prior decisions."

Because one of the then-new Justices who was instrumental in the Payne decision was Anthony Kennedy--who still sits on the Court--that sentence will likely be singled out as a none-too-veiled criticism of an active erstwhile colleague.  That's unfortunate, both because I doubt that Justice Stevens meant to single out Justice Kennedy and because I think that this is a weak piece of the Stevens essay.

Is there any reason why a new Justice has a special obligation to follow past precedents?  Justice Stevens does not point to one in his essay and, to my knowledge, the closest the Court has ever come to articulating this view was in Planned Parenthood v. Casey, in which the joint opinion (speaking for a majority on this point) said that "to overrule under fire in the absence of the most compelling reason to reexamine a watershed decision would subvert the Court's legitimacy beyond any serious question."  Although not stated expressly, the argument there had the following implicit steps: 1) The three authors of the joint opinion (Justices O'Connor, Kennedy, and Souter) were all appointed by Presidents who were under considerable pressure to name Justices who would overrule Roe v. Wade; 2) Actually overruling Roe in those circumstances would have created the impression that the Court responds directly to political pressure; 3) That impression would undermine the Court's legitimacy; and therefore 4) The Court should avoid overruling unless the case for overruling is extraordinarily strong.

It's not clear that the Casey joint opinion was persuasive on this point.  Justice Scalia, for one, said in his dissent that politics shouldn't influence the Court, but that the joint opinion was arguing for the counter-intuitive proposition that the unpopularity of a decision counts as a reason to adhere to the decision.  I agree that this is counter-intuitive and thus probably not what the Casey authors had in mind, but then all that the Casey authors really were saying was that the Court's decisions should not be influenced by politics, which is a banality with which everyone agrees.  If so, however, then the Casey joint opinion provides no support for the proposition that new Justices appointed to overrule a decision have a special reason to adhere to it.

In any event, even if Casey did establish that somewhat odd proposition, it's hardly clear that it would apply in a case like Payne--and not just because Payne was decided before Casey.  The appointments of Justices Kennedy and Souter--the then-new Justices who cast the deciding votes in Payne--did not focus much attention on the death penalty.  Kennedy was a consensus appointee in the wake of the failed Bork nomination, and though Bork's nomination was contentious, that was not really because of the death penalty.  Likewise, Justice Souter's confirmation hearings generated some controversy, but mostly because of the fact that so little was known about his views.

There are a few crumbs in the confirmation hearings that relate to victim impact statements.  Then-Judge Kennedy was praised by some of his supporters for his own championing of victims' rights, but he was talking about support for living victims as witnesses and in other regards; Kennedy was asked no questions about victim-impact evidence as such. (Very long transcript available here.)  Then-Judge Souter was seemingly prompted by Senator Strom Thurmond to say something in favor of victim impact evidence, but Souter responded blandly by talking about how victims can testify as witnesses and should be eligible for state services.  (Another very long transcript available here.)  That's it.  There was no movement to overrule Booth with the Kennedy or Souter appointments and Booth was not, in any sense, a "watershed" ruling anyway.

In the end, I don't read Justice Stevens to be saying that a new Justice has a greater obligation to adhere to stare decisis than does a Justice who was on the Court when the earlier decision was handed down.  Thus, Kennedy and Souter are no more to blame for overruling Booth in Payne than were the other Justices in the Payne majority.  If Payne is wrong, it's because Booth was right, or because Booth was close enough to right that it didn't deserve to be overruled.  But that doesn't really have anything to do with the fact that new Justices played a role in its overruling.


egarber said...

I think Stevens is on 60 Minutes tonight, talking about this stuff.

Blogger said...

I have often wondered why more is not written about the doctrine of stare decisis. For example, I am not clear on whether it is somehow incorporated into the Constitution or whether it is a sub-constitutional prudential doctrine. If it's in the Constitution, where is it? Equal Protection? (Can't be, because stare decisis was around long before the 14th Amdt.) Due Process? (Usually relates to how the law is applied to an individual, not a meta-theory for deciding cases). Does it hide behind the "the" in "the Judicial power . . ." referenced in Article III? (Ask the originalist scholars?)

If it's subconstitutional, how is it that it frequently seems to trump individual justices' views of what the Constitution requires, given that Constitution styles itself the "supreme law of the land?" In other words, how can the doctrine of stare decisis trump the doctrine of constitutional supremacy?

Maybe there's literature on this that I haven't come across.

tjchiang said...

When you say that everyone agrees "the Court's decisions should not be influenced by politics," it all depends on what specifically you mean by "influence." Everyone agrees that a Justice should not vote a way that he was not otherwise inclined to do because the President might give him a promotion to Chief Justice.

But what you are actually promoting is for the court to be influenced by politics in a more subtle way. That is, if a Justice is nominated precisely because the president expects him to vote a certain way, and then the Justice does vote that way, and if the Justice would not have been nominated had the expectation been that he would vote the other way, then the court's decision has been "influenced by politics" in one important sense.

Moreover, this type of legal realism which posits that the votes of justices are rather predictable based on their appointing president, and that presidential appointments can and are designed to move the court's jurisprudence, can be deeply hurtful of the legitimacy of the judiciary since it carries the message that Justices are politicians in robes. It also happens to be highly accurate descriptively, so there might not be anything we can do about it. But to imply that this is not a controvertial thing or a valid concern is quite mistaken, I think.

Joe said...

Basically, he thought the precedents were right by a sound following of the law. The new justices disagreed. This boils down to the substance of the claim. As new precedent is set, Stevens was not convinced simply because it is precedent. See his stance on state immunity.

As to "special obligation," not making things up new every day IS necessary for a smooth practice of the law as a whole. So, precedent in our system always was respected to some degree. Note all the citations in rulings and attempts to fit new rulings among them, even though sometimes this was akin to shoving a round peg in a square hole (see, e.g., Oregon v. Smith, where an overturned flag salute ruling was cited or Scalia citing unenumerated rights to make his case).

Joe said...

Anyway, I didn't really buy the public pressure component of Casey. The precedent angle there could have been: "this has been good law for twenty years, people relied on it and unless it simply doesn't work (in fact it reasonably fits in greater principles like privacy or autonomy), we should not overturn it." Also, judges in some fashion are influenced by events. Some tests like what is "reasonable" in fact are in some fashion affected by the times. On that level, Casey might have been just being honest, maybe too honest for Scalia.

Michael C. Dorf said...

Good comments all, thanks. A few quick reactions:

1) Blogger: There is no consensus about the status of stare decisis. My own view is that "the judicial power" vested by Article III includes the power to follow precedent, but that the Court has some latitude in doing so, even in constitutional cases. But, you say, if there's a discretionary piece to stare decisis, then it's not constitutionally required, and so sub-constitutional; so how can a sub-constitutional doctrine trump the Constitution? The answer would have to be that it's not exactly sub-constitutional. I recommend Henry Monaghan's 1988 article in the Columbia Law Review: "Stare Decisis and Constitutional Adjudication."

2) tjchiang: I did indeed intend the sentence you quote to refer to the influence of politics in the first, direct and self-conscious way. I agree that even when a Justice does not self-consciously take politics into account in this way, the politics of the appointments process will indirectly make itself felt through his or her opinions. That does have the potential to undermine confidence in the rule of law, but it also is the chief mechanism by which the People exert influence over judicial constitutional decision making and can thus be seen as a partial antidote to the counter-majoritarian difficulty. In any event, in this post I did not mean to promote any particular view of the relation of politics to adjudication; I simply aimed to point out that I thought it somewhat unfair of Justice Stevens to call out the new Justices in Payne, rather than just disagree with them on the merits (as most of his essay in fact does).

3) joe: I don't think that Casey stands or falls on the portion of the stare decisis section of the joint opinion that I cited. In fact, most of that section says more or less what you say: It's been nearly 20 years; Roe was right or close enough to right that we're not going to overrule.

egarber said...

As to the "politics" question, there's no question that it figures into everything. But I think there's a (subtle) distinction between a judge trying to guess what a president wants and thus deciding amid that pressure -- and a judge who has a pre-existing lean that meshes with what a president seeks in an appointment.

The former would arguably be a negative for judicial independence, while the latter at least entails honest ideology. Given that all branches have certain interpretational roles, this latter kind of "litmus test" seems perfectly appropriate.

Joe said...

I don't think Casey rises or falls on that component, which underlines why I think it might have been a bad idea to toss it in. It on balance put forth more darkness than light.

tjchiang said...


I've always taken Casey to be directed more to my second sense of political influence. That is, to the extent Presidential appointments can move the court by giving a new vote, the new vote (and, ideally, the old votes) should refrain from making this too obvious by applying a heightened standard of stare decisis during the transition period. "Justice X overrules Roe v. Wade in his first decision" is a more striking headline that undermines the supposed independence of the judiciary compared to overruling Roe after 20 years on the court.

The point is one of appearance management. I'm not even endorsing this solution. I am merely saying there is a valid concern and that saying the Casey majority was saying something obvious is too facile.

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