Are Justices "Out of Step" on the Death Penalty?

Dahlia Lithwick has an article in today's Washington Post on "The Dying Death Penalty?" Lithiwck posits a "curious" development: Political leaders and the American public seems to have greater reservations about the death penalty, while the Supreme Court seems less likely than ever to impose constitutional constraints on how capital punishment is administered.

In a curious application of Newtonian physics, public and state support for capital punishment is steadily declining in America just as the resolve to maintain the death penalty seems to be hardening in the one arena where death-penalty policy once had seemed poised to change: the Supreme Court.
After summarizing the changes in public opinion and the grounds for questioning capital punishment, Lithick concludes:
But if for most Americans the time for stubborn certainty about the death penalty, at least as it's currently practiced, seems to be over, a court that is more certain than ever of its fundamental fairness looks grievously out of step with an American public willing to recognize the dangers of injustice, error and doubt.
The problem with Lithwick's formulation is its utter failure to distinguish between law and policy. For Lithwick, what makes some justices "out of step" with the American public is their unwillingness to curtail or invalidate capital punishment and belief that "if the death penalty in this country needs fixing, the state legislatures should do it, a process that's already beginning to happen." But this hardly follows. Indeed, the Court's death penalty jurisprudence should be determined by the justices' understanding of what the Constitution requires, not their feelings, misgivings, or personal sense of justice.

There are certainly grounds for misgivings about the death penalty as currently practiced, but that does not mean there is any legitimate basis for the Supreme Court to constrain or limit its use any more than it already has. And the Court is hardly "out of step" with the public if it leaves the American people ample ability to enact its policy preferences into law through the Democratic process. Indeed, what makes the Court "out of step" is when it engages in the opposite - prohibiting democratic majorities from resolving contentious political issues through their representatives and the democratic process.

More on the Supreme Court and the Death Penalty: I'll second my co-blogger Jonathan Adler's criticism of Dahlia Lithwick's latest column, and I'll add another concern: the apparent lack of evidence to support Lithwick's central thesis.

  Lithwick's claim is that the Supreme Court "looks grievously out of step" with public opinion on the death penalty: "In a curious application of Newtonian physics, public and state support for capital punishment is steadily declining in America just as the resolve to maintain the death penalty seems to be hardening" at the Supreme Court.

  But what's the evidence for this? As Lithwick acknowledges midway through her column, a majority of the Court has had surprising success narrowing when capital punishment can be imposed. Still, Lithwick tries to make the case that the Court is "out of step" in the sense of having "resolve" to maintain the death penalty. As far as I can tell, here are the four examples she uses to support the claim:
  1. In one recent case the Supreme Court overturned a capital conviction but Chief Justice Roberts wrote a dissent.

  2. In a 2005 case the Court overturned another capital conviction, reversing a decision written by then-Judge Samuel Alito.

  3. In a capital case last year, Justice Scalia wrote a concurrence that included very heated rhetoric.

  4. In a recent oral argument, Chief Justice Roberts asked a question that seemed to question some of the Court's recent decisions that increased judicial scrutiny of the death penalty.
  I'm not sure why any of these examples are supposed to establish that the Court is out of step with public opinion (assuming, for purposes of this post, that this would be a criticism if true). Granted, it suggests that some individual Justices favor narrowing the role of the courts in the implementation of the death penalty. But none of the evidence actually seems to go to the question of what a majority of the Court has done. And to the extent Lithwick's point is that the Court may change its direction in the future, surely the same can be said about the direction of public opinion.

  UPDATE: Ed Whelan adds more thoughts here.
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.