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Whelan on Lithwick & the Death Penalty:

Over at NRO's Bench Memos, Ed Whelan makes further criticisms of Dahlia Lithwick's recent article on the death penalty and the Supreme Court.

Kovarsky (mail):
i have to admit, i found jonathan and orin's post much better than this throaty bit. from the outset, i should say that i sympathize with those critical of lithwick's article, but the temptation to caricature the woman seems irresistable.

1. In her opening sentence, Lithwick asserts that the "resolve to maintain the death penalty seems to be hardening" at the Supreme Court. This phrasing is sloppy and misleading. No justice has ever resolved to maintain the death penalty in jurisdictions that have abolished it (though anyone subscribing to the view that "the Constitution means whatever I want it to mean" could certainly concoct a basis for doing so).

Lithwick doesn't believe the justices should vote their conscience on the death penalty; she's not that shallow, sorry. Scalia and Thomas write persistent dissents in a number of death penalty cases where they refuse binding precedent (the 8th amendment evolving standards test) in favor of an originalist approach. Whatever you think of originalism, you can't deny that Scalia and Thomas are resisting adherence to precedent. I don't know how this can be described by anything other than "resolve." In Kansas v. Marsh, the opinion Whelan discusses in his (3), Scalia write seperate concurrence, to make the very point that he will not adhere to any precedent that insists jurors must be unconstrained in rejected the death penalty.

2. Lithwick contends that "several justices seem to be staking out strong personal positions on this front in the culture wars." But she offers not an iota of evidence that the justices she criticizes are driven by their "personal" views. Moreover, it would be difficult to characterize as strongly ideological the position that the people are free, within broad bounds, to retain or abolish the death penalty.

Lithwick's rhetoric is unfortunate, and she's wrong. But once again, Whelan can't resist his own temptation to caricature:

Here as on so many issues (like abortion), leftist critics fail to recognize that the supposedly "conservative" position that they decry is in fact substantively neutral. In particular, whereas the Left wants justices to entrench their policy preferences in the Constitution, so-called conservative extremists recognize that the Constitution leaves the matter to the people to decide.

What does this have to do with anything? What does being on the "left" or the "right" have to do with one's evaluation of the merits of the decision? I think Roe was wrongly decided, and I guess I'm a liberal (whatever that means anymore), but I also consider precedent important. I'm not sure how that fits into Whelan's bipolar model of legal criticism.

3. Lithwick alleges that Justice Scalia, in his concurring opinion in Kansas v. Marsh, "claimed, in effect, that even if those exonerated were not guilty enough to warrant the death penalty, they were still far from 'innocent'"—and she then snarkily declares "How that made them candidates for the death penalty he did not explain." I do not see how Lithwick's allegation of what Scalia "claimed, in effect," is a plausible reading of his opinion.

I take Lithwick to be making a point that is fairly common in AEDPA debates, that demands of "actual innocence" involve claims that the offender was actually innocent of the crime, rather than claims that while guilty of the crime, the offender did not exhibit the culpability necessary to merit death (or the jury was not allowed to consider it). Scalia wrote separately in Marsh, as I said above, to emphasize that he thought states can constitutionally restrict the jury's discretion to reject the death penalty. That's what Lithwick is talking about when she says that while the person might not be actually innocent of the crime, Scalia does not explain why they should be subject to capital punishment. Now I'm not going on the record agreeing with Lithwick or not, but I'm quite confident that Whelan understands what she meant when she criticized Scalia.
2.12.2007 10:32pm
Kovarsky (mail):
by the way, i expressly apologize for all the typos in my post. too much general tsao's chicken will kill a man's attention to detail.
2.12.2007 10:40pm
David M. Nieporent (www):
Scalia wrote separately in Marsh, as I said above, to emphasize that he thought states can constitutionally restrict the jury's discretion to reject the death penalty. That's what Lithwick is talking about when she says that while the person might not be actually innocent of the crime, Scalia does not explain why they should be subject to capital punishment. Now I'm not going on the record agreeing with Lithwick or not, but I'm quite confident that Whelan understands what she meant when she criticized Scalia.
I don't think so -- because I don't think that's what she meant at all.

Incidentally, your own formulation of what she meant doesn't really make any sense, either. Scalia doesn't need to "explain" why they "should be" subject to capital punishment. The state legislature and the jury do. (Or, more to the point, that is Scalia's explanation. The state legislature prescribed standards and procedures, and the jury found that the case fit within those.)

But that's an odd way of looking at Scalia's concurrence in Marsh; that was a minor part of Scalia's opinion. Scalia spent pages arguing that the examples trotted out of "innocent" capital defendants aren't really innocent people. That seems to be what she refers to.
2.12.2007 11:04pm
allwrits (mail):
Scalia has repeatedly noted his personal and professional position on the death penalty are one in the same — that he believes the Bible requires, as Lithwick has previously noted, the death penalty for certain crimes &that the Pope is wrong on this regard. Ed appears simply not to have read enough of Scalia's speeches to realize there is a seamless garment between his personal &professional views.

Put another way Ed is simply wrong when he states:

Lithwick contends that "several justices seem to be staking out strong personal positions on this front in the culture wars." But she offers not an iota of evidence that the justices she criticizes are driven by their "personal" views.
Put another way, his central thesis is errant.
2.12.2007 11:06pm
Kovarsky (mail):
David,

Nothing gets Scalia's blood up like the idea that states cannot constrain a jury's discretion to reject capital punishment. While I would never suggest that's the "point" in Marsh, he certainly invokes that idea on two separate occasions. Lithwick wasn't saying that was Scalia's "point" in Marsh either; she was alluding to the fact that he said it there, which he did. But again, to whatever extent you impute a belief in that emphasis to me, I can only urge you not to.

Also, I think I disagree with you here:

Incidentally, your own formulation of what she meant doesn't really make any sense, either. Scalia doesn't need to "explain" why they "should be" subject to capital punishment. The state legislature and the jury do. (Or, more to the point, that is Scalia's explanation. The state legislature prescribed standards and procedures, and the jury found that the case fit within those.)

Your point is well taken - that a person "deserves" capital punishment when the legislature says it does. But the Court has rejected that idea, seemingly requiring that a jury be able to reject death if it wants to. So my quarrel with you isn't so much logical as it is doctrinal. I obviously recognize that someone cannot "deserve" or "not deserve" the death penalty absent some idea of what the standard for "deserving it" is.

Whatever you want to say about Scalia, I think it's fair for me to say that he went the extra mile in Marsh to make a point about the equipoise statute. I'm sure that is what Lithwick is honing in on.
2.12.2007 11:25pm
Kovarsky (mail):
Incidentally, I am NOT making the argument that Scalia votes his preferences. I think he's casting an originalist ballot in the face of contrary precedent. That's a problem I have with originalism, not suspicion about Scalia's motives.
2.12.2007 11:34pm
Crunchy Frog:

Scalia and Thomas write persistent dissents in a number of death penalty cases where they refuse binding precedent (the 8th amendment evolving standards test) in favor of an originalist approach.

Binding on whom, exactly? Supreme Court precedent is binding on future Supreme Court decisions up until it isn't. Assuming you are correct for the sake of argument, Scalia and Thomas will have escaped the bounds of "binding precedent" the instant that they can get three other Justices to agree with them.

Incidentally, I am NOT making the argument that Scalia votes his preferences. I think he's casting an originalist ballot in the face of contrary precedent. That's a problem I have with originalism, not suspicion about Scalia's motives.

Not all precedent is good and worth adhering to. Plessy wasn't. Roe isn't. Kelo isn't. Grutter isn't. Shall I go on?
2.13.2007 1:55am
Kovarsky (mail):
Not all precedent is good and worth adhering to. Plessy wasn't. Roe isn't. Kelo isn't. Grutter isn't. Shall I go on?

Nope, I understand where you're coming from.
2.13.2007 2:04am
David M. Nieporent (www):
Scalia has repeatedly noted his personal and professional position on the death penalty are one in the same — that he believes the Bible requires, as Lithwick has previously noted, the death penalty for certain crimes &that the Pope is wrong on this regard. Ed appears simply not to have read enough of Scalia's speeches to realize there is a seamless garment between his personal &professional views.
Given that the entire point of this thread is the complete unreliability of Dahlia Lithwick on these matters, citing a Lithwick piece which merely further evinces her confusion on the matter is hardly likely to convince anybody. The other link you cite doesn't support your argument either.

His personal and professional opinion are not the same. His professional opinion is that the constitution allows the death penalty. His personal opinion is that the death penalty is appropriate for certain offenses. Although as it happens, those both end up in the same place, those are simply not the same; that's the exact mistake Lithwick makes repeatedly.

What's particularly bizarre about the criticism of Scalia's view on judges and the death penalty (and this mistake isn't just Lithwick's) is that it gets his argument completely backwards. Scalia argues that judges should not let their religious views interfere with their job; somehow that got transmuted in the minds of his opponents into exactly the opposite position.
2.13.2007 3:08am
Kovarsky (mail):
David,

I agree almost entirely with your last post, except to the extent that I think this post's scope has as much to do with Whelan's unfortunate phrasing as it does with Lithwick's. Neither does the debate any service by lapsing into rehearsed cliches about their perceived adversaries.
2.13.2007 3:14am
Kovarsky (mail):
I guess my problem with Scalia here is that while he considers his job to call balls and strikes, he won't change the zone when the league office tells him to.
2.13.2007 3:22am
Justice Stevens (mail):
My problem with Scalia is that he uses terrible baseball metaphors.
2.13.2007 4:58am
AKNYC (mail):
I think there is a "forest from the trees" problem in all these comments on Lithwick.

Does anyone seriously believe that the Supreme Court should look at popular opinion at any moment in time in making decisions? Lithwick surely doesn't. She is simply a liberal ideologue who's against the death penalty and comes up wit hthe bizarre notion that if people are against it, the justices should step in line.

By her "reasoning" Brown v. Board of course would never have been adoptd, and affirmative action would have been eviscerated decades ago.

Lithwick is a very good writer (in terms of style) but has a strong liberal bias (why else write for Slate)and almost no experience as a lawyer (she worked very briefly as a divorce lawyer in Rno for a couple of years). Is she smart in the conventional sense? For sure. Does she have anything approaching a legitimate jurisprudential philosophy? No.

Ask her about the polls on affirmative action and abortion and NSA spying ans see how far she takes her argument about popular opinion.
2.13.2007 9:03am
Kovarsky (mail):
Lithwick is a very good writer (in terms of style) but has a strong liberal bias (why else write for Slate)and almost no experience as a lawyer (she worked very briefly as a divorce lawyer in Rno for a couple of years). Is she smart in the conventional sense? For sure. Does she have anything approaching a legitimate jurisprudential philosophy? No.

I could be wrong about this, but didn't she clerk for the chief judge on the 9th circuit after graduating from Stanford? I also think she had published at some pretty big name publications before she ever got to slate, including at some pretty big name publications.
2.13.2007 9:23am
Orielbean (mail):
You are correct - check her NYT Bio.
link
2.13.2007 9:38am
Just Dropping By (mail):
At this point the horse has been injected, gassed, shot, electrocuted, and hung....
2.13.2007 10:13am
AKNYC (mail):
I agree she had published before -- as I said, she is a very good writer. But so are most ideologues, left and right.

I was simply saying that she makes little sense from a practical point of view, and that in this case (and many others that touch on her prejudices), she articulates a weak and often irrational case, but does it stylishly.

9th Circuit, Supreme Court, or wherever, serious practitioners and serious academics usually see the folly of arguing that the Supremes should pay attention to polls on any issue.

That Lithwick makes this argument shows she isn't a litigator, at the least. If she had been, she would readily see that what's good for the goose is, well, you know. I'd repeat, does she want affirmative action or gender preference polls to govern Sup. Ct. decision making? Of course not. Sh just postulates it here because she doesn't like the dath penalty. That is hardly the substance of a competent lawyter's argument.
2.13.2007 10:19am
AKNYC (mail):
and yes, I know, I need a new keyboard. Sorry for the typos.
2.13.2007 10:21am
allwrits (mail):
David:

Again, reread Scalia's speeches he doesn't say Judges should divorce themselves from their religious opinions, rather he -- as noted in the Catholic News Service piece linked previously -- has repeatedly stated they should embrace them.
2.13.2007 11:10am
DCP:
The fact that she is an accomplished writer, a law school graduate, former judicial clerk, member of the bar, supposed Supreme Court expert, etc. is what is so troubling about this.

She knows better.

She knows the distinction between policy / the democratic machinery and the role of judges. And she is too skilled as a writer for this to be chalked up to an honest misunderstanding.

She knew that 90% of the readers who clicked into Slate would lack the legal accumen to distinguish the subtle implications she makes from the enormous blunders, which every lawyer here instantly pounced on. It was a deliberate deception to stir the pot on this issue, calculated on the fact that your average Slate reader will probably associate the judiciary with representative government.

It's intellectual dishonesty and a breach of duty and trust between her and readers who expect a certain level of accuracy and integrity in matters of which she is an expert and they are a novice.
2.13.2007 11:29am
PatHMV (mail) (www):
Just Dropping By: My standards of decency have been horribly offended at what's being done to the poor horse...
2.13.2007 12:02pm
David M. Nieporent (www):
Allwrits, no matter how many times you link the same article, it isn't going to change what it says.

First, if you want to talk about what Scalia says you should read what Scalia says and not what a reporter says about what Scalia says. This is his primary piece on the subject.

Second, nothing in that article says anything about judges embracing anything.

What Scalia says, independent of his jurisprudence, is that there's nothing in Catholic doctrine which forbids the death penalty. He has said that Catholic tradition upholds the use of the death penalty, and that recent opinions by the Pope on the subject are not spoken ex cathedra, and hence aren't binding. He argues, therefore, that people who claim that their Catholicism requires them to oppose the death penalty are mistaken.

But what he says about judges is that the constitution allows the death penalty, and any judge who says, "I can't uphold it because my religion forbids it" shouldn't be a judge, because he's putting his religion above the constitution.
2.13.2007 12:34pm
byomtov (mail):
His personal and professional opinion are not the same. His professional opinion is that the constitution allows the death penalty. His personal opinion is that the death penalty is appropriate for certain offenses. Although as it happens, those both end up in the same place, those are simply not the same;

Pure coincidence, no doubt.
2.13.2007 2:12pm
David M. Nieporent (www):
Pure coincidence, no doubt.
Well, yes, it is.
2.13.2007 3:37pm