By James Liebman, Simon H. Rifkind Professor of Law, Columbia Law School. Professor Liebman was a law clerk for Justice Stevens, 1978 - 1979. His following post is adapted from comments he made at a recent ACS event examining Justice Stevens' judicial career.
Thank you for having me, even if I do get the role of the oldest clerk standing.
I'll mention two of Justice Stevens' legacies, which might be described as "something new and borrowed (or shared)" and "something old and blue."
By "new a
nd shared" I refer to a jurisprudential innovation Justice Stevens joined Justice Stewart in developing to interpret the Eighth Amendment. The work of dozens of cases over decades, I can only briefly summarize it here.
The Eighth Amendment presents the starkest counter-majoritarian dilemma: It obligates judges to invalidate penal laws and verdicts that impose "cruel and unusual punishment," but gives them only those four infinitely ambiguous words to use to figure out how to meet that obligation. The temptation to suffuse decisions with the judge's own religious, moral or political views is palpable.
In a dozen cases going back to the mid-1970s and culminating in the Graham v. Florida (juvenile life without parole) decision two weeks ago, the Court came up with a solution. Justice Stevens is the only Justice who joined all of those decisions that remain good law, and in 2002 he wrote the crowning example of them - Atkins v. Virginia, invalidating the death penalty for mentally retarded offenders.
This better solution is for the justices to inform their Eighth Amendment judgments by relying on literally thousands of decisions of coordinate democratic institutions made nationally, over years, to reveal a "modern consensus" as to the appropriate punishment for particular crimes or offenders.
Under this approach, the Court takes a current head count and reviews the recent trends in (1) penal laws enacted by all state and federal jurisdictions; (2) how frequently sentencers actually impose a permissible punishment; and (3) the judgments of other democratic nations. Although the Court reaches its own conclusion, it does so in the shade of - and in every case so far, has done so consistently with - the decisions of these other democratic institutions.
Justices Stewart and Stevens took this innovation a step further in addressing the constitutionality of the death penalty for murder. In their jointly authored opinion in Gregg v. Georgia, they concluded that the death penalty for murder is neither always constitutional nor always unconstitutional. They then read the Cruel and Unusual Punishment Clause - what looks like a substantive limitation - to impose procedural requirements that in effect enlist the nation's 50-odd criminal justice systems in generating a democratic consensus on the murders for which death is appropriate.
Guided by these constitutionally required procedures, dozens of state legislatures would define, and hundreds of sentencing juries would apply, aggravating circumstances that narrow capital eligible crimes to a small set of "worst of the worst" cases. Those same actors would then define and apply mitigating circumstances and balancing procedures that test whether, all things considered, the case truly is at the aggravated core. Then, each case would undergo appellate review comparing it to all of the state's murder cases in which death was and wasn't imposed to reveal the state's capital going-rate and expose outliers that are reversed. Finally, the Supreme Court would perform back-up review, assuring that states adhere to these procedures and to discipline States that generate outlying or illegitimate patterns of results.
In this way, again, the aggregation of scores of legislative decisions, and thousands of constitutionally structured sentencing and appellate decisions, reveals a national going rate for the "worst of the worst" murders, rendering corrigible the determination of which death sentences are and are not "cruel and unusual."
The full Court applied this system effectively well into the 1980s. But thereafter a majority of the Court, with Stevens in dissent, began refusing to supervise procedures or outcomes. An unfortunate example is McCleskey v. Kemp, where a five-person majority of the Court in 1987 allowed Georgia to continue generating death-sentencing patterns explainable only on the basis of the race of the victim. Justice Powell defended the decision as necessary to save the entire criminal justice system from invalidation, but Justice Stevens demonstrated in dissent that the underlying regression studies provided a more modest solution. The racial disparities went away when the level of aggravation was high: the Supreme Court should simply require Georgia to use narrower aggravating factors.
By 2008, Justice Stevens had seen enough. Gregg v. Georgia had explicitly initiated an experiment to see if states could identify the "worst of the worst" murders. In his separate opinion in Baze v. Rees, Justice Stevens catalogued the Court's failure to police that experiment. Whether or not the Court could have helped States reach a consensus based on appropriately monitored democratic experience, it had failed to do so in fact. The jumble of flawed sentences that resulted left the death penalty "‘the pointless and needless extinction of life.'"
What Justice Stevens offered the Court that was new and important, if only partly successful in its first run, is a Constitution with a self-corrective capacity to learn from democratic experience, not only in exposing penal barbarisms but also in using constitutionally mandated procedures to force democratic values into the open in ways that render corrigible otherwise incorrigible phrases such as "cruel and unusual punishment." The Court might do well to employ this strategy when facing other difficult interpretive questions.
What, then, is Justice Stevens' "old and blue" legacy? It, too, is reflected in Baze. There, in stepping away from the death penalty, Justice Stevens concurred in a judgment allowing an execution by lethal injection. Departing from the practice of other justices whose turn against the death penalty led them to vote against it in every case, Justice Stevens pointedly closed his opinion as follows:
The conclusion I have reached with regard to the constitutionality of the death penalty itself makes my decision [to concur] in this case particularly difficult. It does not, however, justify a refusal to respect precedents that remain a part of our law.
As a fervent death penalty opponent, I find it similarly difficult to say so, but in the end I think Justice Stevens was right to respect the integrity of the law even over his view of the unconstitutional cruelty of state-sanctioned killing. And that is the Justice's second legacy I'll mention. Justice Stevens' retirement, Justice Stevens is perhaps the last of a breed of great American judges who believed in the self-contained integrity of the law - an integrity justified in Justice Stevens' view by the law's self-corrective capacity - and who placed that integrity above all else.
It's old-fashioned to say so, but I think we all should be a little sad, a little blue, at the passing of a generation of great jurists who lived by that creed.
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