Jonah Goldberg has a perceptive column about the peril of judicial activism based on the recent Supreme Court ruling on capital punishment, Baze v. Rees, 553 U. S. ____ (2008). In a separate concurrence, Justice John Paul Stevens makes an argument that demonstrates a profound disrespect for the rule of law in this country:
In sum, just as Justice White ultimately based his conclusion in Furman on his extensive exposure to countless cases for which death is the authorized penalty, I have relied on my own experience in reaching the conclusion that the imposition of the death penalty represents “the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes. A penalty with such negligible returns to the State [is] patently excessive and cruel and unusual punishment violative of the Eighth Amendment.” Furman, 408 U. S., at 312 (White, J., concurring).
Now, Justice Stevens does not dispute that Supreme Court precedent makes it quite clear that the death penalty is constitutional. And indeed, one can make a perfectly legitimate argument that the Supreme Court got it wrong and that the death penalty is a violation of the Eighth Amendment’s ban on “cruel and unusual” punishment. Such an argument is almost certainly wrong and is unlikely to prevail, but it’s not an unreasonable argument to make.
Justice Scalia points out what is unreasonable about Justice Stevens’ argument:
As JUSTICE STEVENS explains, “‘objective evidence, though of great importance, [does] not wholly determine the controversy, for the Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment.’” Ante, at 14 (quoting Atkins v. Virginia, 536 U.S. 304, 312 (2002); emphasis added; some internal quotation marks omitted). “I have relied on my own experience in reaching the conclusion that the imposition of the death penalty” is unconstitutional. Ante, at 17 (emphasis added).
Purer expression cannot be found of the principle of rule by judicial fiat. In the face of JUSTICE STEVENS’ experience, the experience of all others is, it appears, of little consequence. The experience of the state legislatures and the Congress—who retain the death penalty as a form of punishment—is dismissed as “the product of habit and inattention rather than an acceptable deliberative process.” Ante, at 8. The experience of social scientists whose
studies indicate that the death penalty deters crime is relegated to a footnote. Ante, at 10, n. 13. The experience of fellow citizens who support the death penalty is described, with only the most thinly veiled condemnation, as stemming from a “thirst for vengeance.” Ante, at 11. It is JUSTICE STEVENS’ experience that reigns over all.
This is about as sharp a criticism as you’ll find between Supreme Court justices. Goldberg puts it all into context:
Supreme Court justices must “solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent on me as a justice of the Supreme Court of the United States under the Constitution and laws of the United States, so help me God.”
Note the bit about doing right to poor and rich alike. Feeling sorry for the poor guy who violates the Constitution or the law has no role in how a Supreme Court justice is supposed to make a decision. Legislators can write laws based on empathy. They can invoke their pet theories about “how the world works.” They can even, as Justices Stephen Breyer and Ruth Bader Ginsberg are fond of doing, consult foreign laws and court decisions in their efforts to make a more perfect union. But Supreme Court justices are supposed to decide what the written law requires, not pick winners and losers based upon some sense of noblesse oblige. That’s why all of those statues of Lady Justice show her standing blindfolded, not bent over kissing the boo-boos of the unfortunate and the downtrodden.
In a very real sense, this election year we face the question: Do we want to live in a monarchy or a nation of laws? Is this to be a country where justices serve as a reliable backstop against encroachments upon the constitutional order, or is this to be a country where the most undemocratic branch of government serves as the tip of the spear for such intrusions?
The judiciary is supposed to be “the least dangerous branch” of government. The proper role of judges in our democratic system is not to make law, but to decide what the law is. That means that judges are supposed to be inherently limited to working with the text of the Constitution and statutes. The Supreme Court is not supposed to be a roving agent of justice that goes looking to right problems. That is the role of the legislature, a body which is directly accountable to the people.
If we have a system in which the judiciary can start overturning the rules of democratically-elected representatives based not on the Constitution, but on their own feelings then we have become not a democracy, but an enlightened despotism. Such power is too easily abused, which is why the Founders of this nation specifically did not want that to happen.
This nation is based upon the rule of law, not the rule of men (or women). Justice Stevens may be entirely right that the death penalty doesn’t work, but as Justice Scalia rightly observes, that is a question for the legislature, not the courts. Our system of justice must never be allowed to become a replacement for our system of government, and Justice Stevens’ comments displays exactly the sort of imperialist thinking that harms the rule of law in this country.