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A Judge's Right to Speak ... Versus Getting Things Right

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.

Guestxyz:
Stevens', please.
4.22.2008 4:49pm
guest2847421:
Also, "Judges"
4.22.2008 4:53pm
Orrin Kerr:
Also, "Orin".
4.22.2008 5:04pm
Anderson (mail):
Also, "nonetheless I praised Scalia's silly invective against Stevens's alleged exaltation of 'judicial fiat' without even pausing to acknowledge that Stevens's actual decision in his opinion was precisely the opposite."
4.22.2008 5:04pm
OrinKerr:
I'm fine with Orrin, Orrin. (Who is not me, incidentally.)
4.22.2008 5:08pm
Paul Cassell (mail):
Sorry about that, Orin. Thinking of my wonderful home state Senator!
4.22.2008 5:13pm
eyesay:
"Judges certainly have a right to speak on legal issues ... but they should be be right on those issues." Shorter Paul Cassell: Judges can say anything they want ... but if they disagree with me, they are wrong. Thanks for the conceit, particularly when Stevens was musing about the Eighth Amendment and the meaning of cruel and unusual, which is necessarily, to some extent, a matter of opinion — which was, in fact, what Stevens said. In Cassell's courtroom, apparently, it's offensive to state this fact.
4.22.2008 5:29pm
Lior:
I have no problem with any judge expressing their point of view of constitutional or other issues.

Do you have a problem with judges expressing themselves via judicial opinions? Justice Stevens has many avenues available to him to express his views on any issue: he is free to write a book, give lectures or TV interviews, write newspaper op-eds, or give out handbills on the Supreme Court steps. What he should not do is embed his personal views into an official "opinion of the supreme court", when they are not part of the ruling [by this I don't mean the controlling "Opinion of the Court", of course, but the total writing produced by the justices].

Let as assume for the sake of argument that the death penalty might be unconstitutional. Nevertheless, the question of constitutionality was not before the court. Would you have the same reaction if this passage was embedded into one of the tax cases annouced on the 15th?
4.22.2008 5:37pm
eric (mail):
Anderson,

So Scalia's counterargument to Steven's argument cannot be praised with noting that Stevens apparently felt that the issue in question was not before the court? It seems that Stevens has a clear opinion about the death penalty that can be criticized on the merits, regardless of the outcome of the case. To criticize Mr. Cassell for failure to note a fact extraneous to the discussion is petty.
4.22.2008 5:47pm
titus32:
Eyesay, you misunderstand and/or misrepresent the point. Cassell disagrees with Stevens' opinion that the death penalty is unconstitutional, I assume for reasons similar to Scalia's (since he approvingly cited Scalia's opinion). I really don't understand various commenters' attempts to preclude straightforward debate.
4.22.2008 5:48pm
Dilan Esper (mail) (www):
I don't think Cassell's adequately coming to grips with what Stevens did. He hasn't yet invalidated one death sentence on the ground that the penalty is cruel and unusual. All he has done is laid out his argument, but he has continued to follow prior precedent.

So Cassell's position has got to be that it is simply beyond the pale to even intimate that capital punishment is unconstitutional. But why would this be? I do realize that the Constitution, by negative implication, seems to permit it. But let's say that it could be established that there was no way to execute people that was not cruel and unusual. (I am not claiming this has been established, I am just assuming it.) Wouldn't the specific text of the Eighth Amendment prevail over the negative implications elsewhere in the Bill of Rights in that circumstance?

And once you get there, Stevens' position is simply arguing the mixed question of law, fact, and opinion over whether or not there can be circumstances where the death penalty can be administered in a manner that is not cruel and unusual. He's either right or wrong about that, but it seems to be a complicated enough issue that he shouldn't be condemned for expressing himself in the manner he did.

In short, he followed precedent, expressed an opinion without allowing it to affect his vote, and supported his opinion with an argument that makes a colorable case. What's the problem, unless there is simply a form of conservative political correctness at work that says that no judge may question the death penalty?
4.22.2008 5:55pm
titus32:
He's either right or wrong about that, but it seems to be a complicated enough issue that he shouldn't be condemned for expressing himself in the manner he did.

Huh? Doesn't this post clearly say that Cassell doesn't object to Stevens "expressing himself the way that he did"? Cassell just disagrees with Stevens' opinion on the constitutionality of the death penalty.
4.22.2008 6:00pm
Lior:
titus32: it would be one thing for Justices Stevens and Scalia to join a debate on the constitutionality of the death penalty, for example by posting comments on this forum. It is very different for them to engage in that debate over the pages of a USSC opinion. To the extent it is appropriate for a judge to express personal opinions, both their contributions should have been published elsewhere. I'm sure that either the New York Times, the Harvard Law Review and the Volokh Conspiracy would have been happy to provide the forum.

Cassell: "Judges certainly have a right to speak on legal issues ... but they should be be right on those issues." -- Scalia and Stevens being simultaneously right is plainly impossible, indicating why they should both have refrained from expressing their opinions.
4.22.2008 6:04pm
titus32:
Lior: I'm not exactly sure why your comments are addressed at me as I have never taken a position on the issue you raise. However, while I do sympathize somewhat with your comment, what Scalia and Stevens did was not unusual for Supreme Court justices. Now if Roberts could rap some knuckles and impose some discipline ...
4.22.2008 6:14pm
Oren:
Perhaps sometimes the umpires should muse publicly about the shrinking strike zone or the excessive number of pitching changes so we can better understand how the umpires perceive the rules of the game. Their job of calling balls and strikes makes them particularly expert in how changing conditions and strategies effect the actual implementation of the written rules.

To take the analogy way too far, if many umpires opine that the balk rule is too vague to implement uniformly, I would take that as very strong evidence that the rule needs to be revised. Of course, I fully expect them to continue to call balks based on the rules as best they can but it does no harm to express that they have no confidence that they are doing so fairly.
4.22.2008 7:00pm
Dilan Esper (mail) (www):
Um, it's Scalia's and Stevens' job to decide the constitutionality of the death penalty.

And my problem with Cassell is he seems to want to cut this off at the pass, implying that it isn't a close question or that the apparent textual authorization of capital punishment ends the inquiry. But neither of these things are true.
4.22.2008 7:13pm
titus32:
And my problem with Cassell is he seems to want to cut this off at the pass, implying that it isn't a close question or that the apparent textual authorization of capital punishment ends the inquiry. But neither of these things are true.

Any support for this at all? Cassell says--in his short post on which you're commenting--"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."

Um, it's Scalia's and Stevens' job to decide the constitutionality of the death penalty.

Not sure who the "um" comment is directed at, but I don't disagree.
4.22.2008 7:18pm
NOLA Lawyer:
Paul:

You totally missed the point Alice was making. She commented on the use of the word "fiat." Perhaps you should re-read her post and update accordingly.
4.22.2008 7:28pm
CrazyTrain (mail):
Reading this thread makes me realize that it must be quite difficult to go from Article III Judge -- and a district judge especially -- to blogger. When you are a district judge (which mind you I think is the hardest of the three levels), you are always being treated with respect (except by the CTA) and even when someone thinks you are crazy, they tell you they "respectfully disagree" etc. Here, well, it's the complete opposite.
4.22.2008 7:32pm
Orrin Kerr:

I'm fine with Orrin, Orrin. (Who is not me, incidentally.)


I'm fine with Orin, Orin. (Who is not me, incidentally.)
4.22.2008 7:36pm
Nunzio:
Stevens opinion basically says that executing someone is cruel and unusual punishment no matter what. I agree with Judges Cassell and Scalia that, as a straightforward legal matter, is objectively wrong since the Constitution explicitly recognizes the death penalty.

It's like saying any fine is unconstitutional because it's excessive. The Constitution doesn't require "fines," it just prohibits excessive ones. If every fine is, by definition, excessive then there's not much left to say about legal interpretation here.
4.22.2008 7:37pm
Oren:
Nunzio, much like Blackmun's dissent in Callin, Stevens argues that the death penalty is flawed as applied, rather than in the abstract. Compare Blackmun's words:
For more than 20 years, I have endeavored - indeed, I have struggled - along with a majority of this Court, to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor. Rather than continue to coddle the Court's delusion that the desired level of fairness has been achieved and the need for regulation eviscerated, I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed. It is virtually self-evident to me now that no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies. The basic question - does the system accurately and consistently determine which defendants "deserve" to die? - cannot be answered in the affirmative.
And now Stevens:
Our decisions in 1976 upholding the constitutionality of the death penalty relied heavily on our belief that adequate procedures were in place that would avoid the danger of discriminatory application identified by Justice Douglas' opinion in Furman, of arbitrary application identified by Justice Stewart, (same), and of excessiveness identified by Justices Brennan and Marshall. In subsequent years a number of our decisions relied on the premise that "death is different" from every other form of punishment to justify rules minimizing the risk of error in capital cases. See, e.g., Gardner v. Florida. Ironically, however, more recent cases have endorsed procedures that provide less protections to capital defendants than to ordinary offenders.
(internal citations omitted)

Now, I respect the position that changing facts and circumstances are incapable of rendering a previously constitutional method of punishment C&U. The question of how normative phrases in the Constitution are to be applied is as solid an interpretive question as can be asked. It is, however, unfair to hide that particular bone of contention behind the phrase "objectively wrong since the Constitution explicitly recognizes the death penalty -- this seems to be like a caricature of his position, not a substantive response.
4.22.2008 8:10pm
Oren:
"seems to be" ==> "seems to me" (I proofread and it was still there!)
4.22.2008 8:11pm
Dilan Esper (mail) (www):
Question:

If all Cassell is saying is that Stevens is wrong on the merits of his opinion, (1) why did he say that Stevens shouldn't have said it at all-- does he believe that no Supreme Court justice should ever express an opinion that Cassell disagrees with?; and (2) why is it that commenters like Nunzio, on the opposite side of this issue, interpret the comment exactly as I do (i.e., that the death penalty is textually permitted and therefore it can never be cruel and unusual no matter the facts regarding its implementation)?
4.22.2008 9:38pm
John P. Lawyer (mail):
I wish Stevens had addressed the textual hook Scalia points to. It is difficult to argue that the Eighth Amendment forbids capital punishment because of the explicit reference in the Fifth Amendment. That said, I wonder if a capital punishment system can be invalidated as being "cruel and unusual" because it unreliably condones the innocent. And if so, what would one have to show to establish such a claim?
4.23.2008 3:01am
John P. Lawyer (mail):
typo in my post: I meant "condemns" the innocent - not condone!
4.23.2008 3:02am
titus32:
why did he say that Stevens shouldn't have said it at all-- does he believe that no Supreme Court justice should ever express an opinion that Cassell disagrees with

Again, he doesn't say this. Again, show me where he says this.

why is it that commenters like Nunzio, on the opposite side of this issue, interpret the comment exactly as I do (i.e., that the death penalty is textually permitted and therefore it can never be cruel and unusual no matter the facts regarding its implementation)?

Your description of Nunzio's comment ("i.e., ...") does not support your view that Cassell is saying that Stevens shouldn't have spoken at all.
4.23.2008 10:50am
Jonathan Kern (mail):
Help - as a mere teacher of high school government - how does the use of the word capital and life in the 5th amendment have to mean death. Capital (death)is simply one definition from capitalis/caput "of the head" - unless we mean the only acceptable capital punishment is taking of the head. Deprivation of life can be construed in many ways especially from a philosophic point of view. For instance to be unable to live life as I wish even if I have all the theoretical liberty to do so.
4.23.2008 12:16pm
Dilan Esper (mail) (www):
That said, I wonder if a capital punishment system can be invalidated as being "cruel and unusual" because it unreliably condones the innocent.

According to Scalia in Herrera v. Collins, no. (The majority rejected Scalia's position.) But then, that opinion is excellent evidence of Scalia's biggest weakness as a judge-- it isn't a sign of your high principle and uncorruptibility, as Scalia seems to think, that you are willing to reach terribly unjust results in cases in the name of your principles. It's just a sign that you have the wrong principles.
4.23.2008 2:05pm