John Paul Stevens: The Supreme Court Is Not Activist, It Is Acted Upon

In the New York Review of Books, retired Supreme Court justice

John Paul Stevens reviews

David Garland’s Peculiar Institution: America’s Death Penalty in an Age of Abolition. Garland’s view, according to Stevens, is that the death penalty is a form of political and cultural expression, not a means of controlling crime.

Stevens’ own history of death-penalty jurisprudence is mostly frank about the fact that the Supreme Court itself is a vehicle for political expression. Mostly, because it does include this bit of pleading:

In 1972, in Furman v. Georgia, the Court effectively invalidated all forty-one existing state and District of Columbia capital punishment statutes. Rather than advancing Justice Goldberg’s purported campaign, Furman, in Garland’s view, was a failure: a temporary moratorium on executions that energized and motivated a powerful pro–death penalty movement. But that analysis presumes that the Court should have been or sought to be an “engine of reform.” That is quite wrong. The Court has no agenda of its own, but may (and must) only decide issues that litigants raise in cases over which the Court has jurisdiction.

The Court has no agenda of its own; indeed, Stevens laments the “judicial activism” of the Rehnquist court in reversing itself on the use of victim impact statements in capital cases. It was “a disappointing departure from the ideal that the Court, notwithstanding changes in membership, upholds its prior decisions,” he writes.

That is quite a clause sitting in the middle there. And Stevens amplifies it throughout the piece—repeatedly, he explains the changes in the Court’s death-penalty holdings as the direct consequence of changes in its membership. Why is it constitutional for prosecutors to purge death-penalty opponents from the jury pool? Because Potter Stewart was replaced by Sandra Day O’Connor. What was the difference between the five justices who suspended capital punishment in Furman and the four who dissented? “[A]ll four dissenters were Nixon appointees, including two who occupied seats once held by Justice Goldberg and Chief Justice Earl Warren.”

This is an obvious fact of American political life, but it mostly goes politely unstated, except among interest groups in the heat of presidential elections. Justices are selected by partisan politicians, in the hopes they will form a faithful and activist partisan voting bloc; this is especially true of the justices who spend the most time talking about the

importance of judicial restraint


Stevens’ account of how this works—a Supreme Court with no agenda, made of members appointed by politicians who do have agendas—conjures an image of the Court as a sort of skill crane. Outside the glass, the Federalist Society eagerly mashes the buttons; inside, the machinery of justice moves smoothly and quietly, with no particular interest in grabbing any individual teddy bear.