Bench Memos

This Day in Liberal Judicial Activism—April 16

2008—Even by Justice Stevens’s high standards, his opinion concurring in the judgment in Baze v. Rees is remarkably strange.  Stevens rambles on for some nine pages (slip op. 8-17) 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 with the Chief Justice that petitioners failed to prove that Kentucky’s lethal-injection protocol violates the Eighth Amendment. 

Justice Scalia, in addition to joining Justice Thomas’s opinion concurring in the judgment, writes a brief opinion responding to Stevens’s folly.  As Scalia says of Stevens’s ultimate reliance on his “own experience”:  “Purer expression cannot be found of the principle of rule by judicial fiat.”

Most Popular


Ivy-League Schools Wither

A  number of liberal bastions are daily being hammered — especially the elite university and Silicon Valley. A Yale and a Stanford, or Facebook and Google, assume — for the most part rightly — that each is so loudly progressive that the public, federal and state regulators, and politicians would of ... Read More

Weirdo O’Rourke

Friends of the young Bill Clinton and Barack Obama spoke of the special glow of promise they had about them, even back in their early twenties. Angels sat on their shoulders. History gave them a wink and said, “Hey, good lookin’, I’ll be back to pick you up later.” Robert O’Rourke? Not so much. He ... Read More

One More Profile of Beto, Because America Needs It

Somewhere in Texas, filed on the fly by a glossy-magazine correspondent, and totally not as a parody written by Jim Geraghty -- “It’s all about vision,” Beto O’Rourke tells me, standing tall upon the Texas prairie, or brush, or whatever this high hilltop area is supposed to be called. We’re watching the ... Read More