1/10/2011

By Christopher Clark

Recently retired Supreme Court Justice John Paul Stevens will publish a review in The New York Review of Books of Peculiar Institution: America’s Death Penalty in an Age of Abolition, by David Garland. In the essay, Stevens offers criticism of former Supreme Court colleagues, gives a detailed explanation of his mid-career change of mind about the death penalty, and impugns the present state of capital punishment in the United States. Though presumably less capable of affecting capital punishment jurisprudence off the bench, Justice Stevens may significantly change the stature and position of retired Justices with his candid post-Court remarks.

As with most Justices who elect to spend their old age judging their grandchildren’s hairstyles rather than constitutional cases, Stevens has decided to keep himself busy writing on issues which were relevant during his time on the bench. However, by naming names and critiquing the Court’s present position on capital punishment, he breaks from the unspoken rule of congeniality and neutrality between ex-Justices. This raises questions going forward about the proper posture of “civilian” Justices.

In my opinion, Stevens may have had no effective outlet to voice his strong views on capital punishment while still on the bench—the composition of the Court as it is currently. As much as retired Justices attempt to maintain an uncontroversial public image, active Justices must do so for the effectiveness and integrity of the Court. Rather than restrict himself to the odd dissent, buried, or often times omitted, in most law school text books, Stevens seems to have revealed a new avenue for Justices ideologically outnumbered while in service, as he was in the Roberts court. While writing opinions on free speech, Stevens’ has been limited. Now—from what I can only assume is the rocking chair on his front porch—Stevens is able to articulate his position more freely and widely than he has for a long time. Exercising his right to publicly voice fundamental disagreement with other Justices and prior decisions, though controversial, puts Stevens in a position to do something he was unable to do on the Supreme Court: change public opinion on capital punishment. This powerful exercise in ideological expression could entice future Justices to follow suit…watch for “Dissenting Opinion” with Antonin Scalia coming soon on Fox News.