Maybe Death Really Is Different . . .

One of the most interesting aspects of the fractured opinions in yesterday’s Baze v. Rees decision on lethal injections is that they almost read like an elaborate MMPI result. Some are almost stunning for how much individual judicial temperament and personality shine through. Justice Stevens concurrence is remarkable, for instance, for its late-in-his-career assessment that in the wake of “extensive exposure to countless cases for which death is the authorized penalty” which (quoting Justice White in Furman ) makes only “marginal contributions to any discernible social or public purpose,” he’s concluded that capital punishment violates the Eighth Amendment. Justice Scalia concurs separately just to respond that Stevens’ conclusion is “insupportable as an interpretation of the Constitution” and that his “policy analysis … fails on its own terms.” He then holds out Stevens conversion on the death penalty as the height of “rule by judicial fiat,” and closes by scoffing that Stevens has subordinated legal scholarship, the work of legislators, and the preferences death penalty supporters to his own personal experience which “reigns over all.”

You all probably remember this movie from the first time we saw it, in Kansas v. Marsh . Still, I wonder whether it’s the death penalty itself that brings out these very pointed, personal reflections and stinging personal attacks from the justices, of if there is something about the rather dishonest way we are having the whole conversation about it that gets them so riled up.