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.”

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