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 t
was shaping up to be a bad summer for death-penalty opponents. First,
there was the execution of Timothy McVeigh in early June, arguably
the most popular lethal injection ever administered in the United
States. Then, during George W. Bush's travels in Europe, Americans
were treated to self-righteous anti-death-penalty posturing on the
part of nations that cuddle up to Saddam Hussein and China without
a second thought, yet heed the prickings of conscience when the
opportunity arises to bad mouth America's "human rights"
record.
All in all,
the anti-capital-punishment forces were looking out-of-touch until
Sandra Day O'Connor addressed the Minnesota Women Lawyers on July
1, and decided to unburden herself of various concerns regarding
the implementation of the death penalty in the United States. In
her rulings from the bench, Justice O'Connor has been a reliable
supporter of capital punishment's constitutionality, and her sudden
"death penalty doubts" threw the press into a tizzy. The
New York Times opined of O'Connor's speech, "an anti-death
penalty activist could not have put [the case against the death
penalty] more pointedly." And the Washington Post added,
"for Judge O'Connor to be expressing second thoughts indicates
just how far the debate has moved and promises to move it further
still" toward outright abolition, of course.
So what, really,
did the Justice say? This is difficult to pin down, since neither
the Supreme Court nor the Minnesota Women Lawyers have yet released
a transcript of the speech. Still, we know that in a much quoted
passage, O'Connor remarked that "the system may well be allowing
some innocent defendants to be executed;" and that she suggested
that "perhaps it's time to look at minimum standards for appointed
counsel in death cases."
Taken on their
face, there is nothing particularly remarkable about either of these
comments. Even the most fervent supporters of the death penalty
recognize that human justice is fallible, and that on rare and tragic
occasion an innocent person will be wrongfully executed. Nor is
it a revelation that well-off defendants, able to hire their own
high-priced attorneys, stand a better chance of getting off than
defendants forced to rely on court-appointed counsel. (O. J. Simpson
springs to mind among many others.) The suggestion that more needs
to be done to ensure adequate representation in capital cases is
hardly a radical notion; what divides Republicans and Democrats
is whether such safeguards are better implemented on the state or
the national level, not whether they should exist at all.
More importantly,
O'Connor's comments seem to have little to do with the death-penalty
issues that will reach the Supreme Court in the near future. There
was no mention, for instance, of the contentious question of whether
executing the mentally retarded constitutes "cruel and unusual
punishment," which the Supremes may revisit in their next session.
O'Connor was the architect of the 1989 Penry v. Lynaugh
decision, which upheld the constitutionality of such executions
because, she wrote, a "majority consensus" had not yet
developed on the matter. If she has changed her mind since then,
her words to the Women Lawyers offered no explicit indication.
So, was Justice
O'Connor's Minnesota speech merely the reflections of a private
citizen, expressing what are widely held doubts about the efficacy
and fairness of the death penalty? If so, then the entire media
furor over her comments would seem to be little more than hot air
and wishful thinking.
But Sandra
Day O'Connor is hardly a private citizen. She is a member of the
highest court in the land, a court whose members are famously loath
to offer political opinions of any stripe and more than that,
she is a "swing vote" between the liberal and conservative
blocs, a weathervane whose tilts typically determine which way the
Supremes will rule. And she was speaking in Minnesota as a Supreme
Court Justice addressing a collection of lawyers, not as a private
citizen. She had to be aware of the ripple effect that her words
would produce.
In this light,
then, there are two ways to interpret Justice O'Connor's comments.
Perhaps she was using her celebrity soapbox, such as it is, to prod
at public opinion and encourage legislators to enact changes to
death penalty law. This would be indecorous, but not illegitimate
behavior for a Supreme Court Justice.
On the other
hand, if Justice O'Connor's words were more than a prod, more than
a suggestion if they were a veiled threat, in other words, directed
at the legislative and executive branches than they represent
the latest step in the judicial usurpation of politics. As the Post
happily put it, "her words may be interpreted as a message
to legislatures that they must improve the system or risk having
the court do it for them." Change the laws, in other words,
or we'll do it for you.
This is not,
needless to say, how courts are supposed to proceed in a republican
society. And it says something about our political life that the
death penalty debate can be jolted, not by legislative action or
executive orders, but by a few cryptic comments from a reticent
Supreme Court Justice. We have a reached a point, it seems, where
the musings of a judge not the rulings, mind you, but the musings
may be a more reliable guide to what America's laws will soon
say than, well, the laws themselves.
Perhaps the
media furor was misplaced. Perhaps Justice O'Connor's long-held
support for the constitutionality of the death penalty, and for
individual states' rights to implement it as they see fit, will
waver not a jot in the months and years to come.
Or perhaps
the high Court's weathervane was serving notice that she is about
to swing in a new direction.
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