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.