This Day in Liberal Judicial Activism—April 16
2008—Even by Justice John Paul Stevens’s unusual standards, his opinion concurring in the judgment in Baze v. Rees is remarkably strange. Stevens rambles on for some nine pages explaining the idiosyncratic bases—at bottom, “my own experience”—for his newfound view, after more than three decades on the Court, that the death penalty itself violates the Eighth Amendment. But Stevens then concludes that he will abide by the Court’s precedents that the death penalty is constitutional—and that he agrees that petitioners failed to prove that Kentucky’s lethal-injection protocol violates the Eighth Amendment.
In a brief opinion responding to Stevens’s folly, Justice Scalia comments on Stevens’s ultimate reliance on his “own experience”: “Purer expression cannot be found of the principle of rule by judicial fiat.”