Finding judicial activism

I understand that those of you in Madison will be able to catch Chief Justice Abrahamson on Sly's radio show discussing judicial activism at 10:30. I am going to miss it because I have to be on a panel at the Eastern District Bar Association discussing the impact of the United States Supreme Court's opinion in Bell Atlantic v. Twombly on pleading standards under Rule 8(a) of the Federal Rules of Civil Procedure. Hopefully someone will live blog it.

I have heard the Chief's take on judicial activism. She thinks its a slur. She denies its existence.

But let's look at Justice Stevens concurrence in Baze v. Rees, yesterday's decision holding that lethal injection does not violate the Eight Amendment. Readers of S&S know that I oppose the death penalty, although I do not think that the Constitution forbids it. Stevens expresses the view that the death penalty is unconstitutional. He marshalls (disputed) evidence in support of his critique but, in the end, says that his own judgment is the measure of what the constitution requires:

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).

Justice Stevens goes on to note that the Court has held otherwise and, under its precedents, the execution methods before the Court are not unconstitutional. Thus, he concurs in the judgment, although presumably he would vote to declare the death penalty unconstitutional were the issue to be presented.

The point is the approach that he takes to interpretation of the Eighth Amendment, essentially making his own sense the sense of the Constitution. Interpretive methods such as this, which maximize judicial authority and discretion, are what we mean when we discuss activism and restraint.

If a bracing rejoinder to this, Paul Cassel recommends Justice Scalia's concurrence in Baze. He directs to the following from Scalia:

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.

I take no position on the desirability of the death penalty, except to say that its value is eminently debatable and the subject of deeply, indeed passionately, held views-which means, to me, that it is preeminently not a matter to be resolved here. And especially not when it is explicitly permitted by the Constitution.