Bench Memos

Justice Ginsburg as Chatty Cathy—Part 3

For more of Justice Ginsburg’s candid revelations of her thoroughly politicized approach to judging, let’s look at her thoughts on the death penalty (from this interview):

[1] I’ve always made the distinction that if I were in the legislature, there’d be no death penalty. [2] If I had been on the court for Furman [ v. Georgia, 1972, invalidating the death penalty], I wouldn’t have given us the death penalty back four years later. Stevens and Powell were part of that. I think there wouldn’t have been a big fuss. There was a big fuss initially over the decision that stopped executions. If the court had stayed there, it would have been accepted. That was the golden opportunity. [3] I had to make the decision was I going to be like Brennan and Marshall who took themselves out of the loop [by dissenting in every case upholding the penalty]. There have been some good death penalty decisions. If I took myself out, I couldn’t be any kind of contributor to those. [Bracketed numbers added]

Ginsburg gets off to a promising start, as she distinguishes between the policy question, left to legislative bodies, whether there should be a death penalty and the constitutional question whether the death penalty is permissible. But although she asserts that she has “always made [this] distinction,” she can’t adhere to it for more than a sentence.

Without offering any clues on how she might think that the death penalty could possibly be categorically unconstitutional, Ginsburg tells us that she, had she been on the Court in the mid-1970s, would have overruled legislative efforts to re-enact the death penalty in compliance with Furman. Her only explanation is blatantly political: such a ruling “would have been accepted” by the public, so why waste a “golden opportunity” to entrench her preferred policy position as a constitutional holding?

According to Ginsburg, the decision she “had to make” when she came on the Court years later was not whether the death penalty is in fact categorically unconstitutional, but rather whether she would unduly reduce her influence by taking that position. Perhaps (contrary to the suggestion in her first sentence)—and contemptible as the overall approach would be—Ginsburg does believe that the death penalty is unconstitutional but, in order not to take herself “out of the loop,” she routinely joins in decisions that affirm death sentences. She’s eager to be a “contributor” to “good death penalty decisions,” but from her discussion it would appear that her measure of whether a death penalty decision is “good” is not based on any assessment whether it comports with the Constitution but simply on whether it further limits application of the death penalty. 

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