I see that at the Volokh Conspiracy my polyblogging Bench Memos colleague Jonathan Adler and Orin Kerr have already offered their criticisms of Dahlia Lithwick’s op-ed in the Washington Post yesterday arguing that the Supreme Court is “out of step” with the American public on the death penalty. As Jonathan correctly points out, Lithwick confuses the legal question of what the Constitution permits or requires with the policy question of whether or when the death penalty should be available. Worse (as Jonathan also points out), Lithwick fails to recognize that it’s the position of the justices she criticizes—namely, that the Constitution within broad bounds leaves death-penalty policy to the people to decide through their elected representatives—that best ensures that changes in the American public’s policy views can be implemented.
Let me add a few particulars:
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). It might be said that some justices are resolved to maintain the permissibility of the death penalty (for certain crimes), but even that obscures the fact that they are so resolved only because they understand their oath of office to require that position.
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. 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.
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.