I'm not a fan of the death penalty, which makes me a minority around here among the people who have expressed an opinion one way or another on the subject, but Justice Scalia's shot at Justice Stevens in the recent decision regarding Kentucky's Death Penalty methods was, well, interesting.
But actually none of this really matters. As JUSTICE STEVENS explains, " 'objective evidence, though of great importance, [does] not wholly determine the controversy, for the Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment.' " Ante, at 14 (quoting Atkins v. Virginia, 536 U. S. 304, 312 (2002); emphasis added; some internal quotation marks omitted). "I have relied on my own experience in reaching the conclusion that the imposition of the death penalty" is unconstitutional. Ante, at 17 (emphasis added).
A classic "Living Constitution" argument, since the Founders didn't seem to have any huge problems with the death penalty... A classic example of "rule by judicial fiat" so beloved of people who can't convince the people of the merit of their ideas, and so instead rely on finding "right-thinking" judges to enact their will.
A slippery proposition to be sure. Because both good and bad has come from it.
However, the only way we the people influence this is through our choices for President and Congress. We have no direct input on the Judicial branch at all.
Yet that branch has been imbued in the last 100 years with a vast amount of essentially unchecked (on a day to day basis) power, the only checks being over generational time spans as Judges retire and new ones are appointed.
It means we really, really, really should be paying attention. And keeping that in mind when choosing.
And it's a really good argument to keep the levers of power churning around between the centers of gravity, and for heaven's sakes don't let either herd of asses or elephants hold all the levers.
The potential for mischief is great.
As Justice Scalia further notes:
Purer expression cannot be found of the principle of rule by judicial fiat. In the face of JUSTICE STEVENS' experience, the experience of all others is, it appears, of little consequence. The experience of the state legislatures and the Congress—who retain the death penalty as a form of punishment—is dismissed as "the product of habit and inattention rather than an acceptable deliberative process." Ante, at 8. The experience of social scientists whose studies indicate that the death penalty deters crime is relegated to a footnote. Ante, at 10, n. 13. The experience of fellow citizens who support the death penalty is described, with only the most thinly veiled condemnation, as stemming from a "thirst for vengeance." Ante, at 11. It is JUSTICE STEVENS' experience that reigns over all.
More accurately, it is the experience of 5, mostly unaccountable people, that reigns over all. Which makes picking the people who do the picking important, even if those people as individuals are really nowhere near as important as politicians are wont to believe they are.
The Supremes, however...
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