House of Eratosthenes

“In my view…the choice for the judge who believes the death penalty to be immoral is resignation rather than simply ignoring duly enacted constitutional laws and sabotaging the death penalty.”

— Supreme Court Associate Justice Antonin Scalia, commenting on the Atkins v. Virginia case

We got an awful lot of self-righteous people, usually with no small amount of condescension and just plain-ol’-snottiness, telling us the death penalty is inconsistent with “evolving standards of decency” or some such rot. More often than not, those snots live in well-to-do ivory tower enclaves and are unlikely to suffer personally from the vagaries of people who have no respect for the sanctity of human life but run free anyway.

One of Associate Justice Scalia’s colleagues does a dandy job of representing these goo-gooders — who are just barely enough in-touch with what passes for a moral compass, to avoid dispensing justice, even when it’s their designated occupation and sworn duty to so dispense.

I’ve already lost this link once, and now that I’ve found it again I wanted to save it onto this page so I’d never lose it again. It’s a great article, because it cites exactly what I’d cite, and highlights exactly what I’d highlight.

Lawprof and legal journalist Jeff Rosen had a very interesting New York Times article about Justice Stevens a week ago. The whole thing is much worth reading; but here I wanted to comment just on one part:

[Justice Stevens] won a bronze star for his [World War II] service as a cryptographer, after he helped break the code that informed American officials that Adm. Isoroku Yamamoto, the commander of the Japanese Navy and architect of the Pearl Harbor attack, was about to travel to the front. Based on the code-breaking of Stevens and others, U.S. pilots, on Roosevelt’s orders, shot down Yamamoto’s plane in April 1943.

Stevens told me he was troubled by the fact that Yamamoto, a highly intelligent officer who had lived in the United States and become friends with American officers, was shot down with so little apparent deliberation or humanitarian consideration. The experience, he said, raised questions in his mind about the fairness of the death penalty. “I was on the desk, on watch, when I got word that they had shot down Yamamoto in the Solomon Islands, and I remember thinking: This is a particular individual they went out to intercept,” he said. “There is a very different notion when you’re thinking about killing an individual, as opposed to killing a soldier in the line of fire.” Stevens said that, partly as a result of his World War II experience, he has tried on the court to narrow the category of offenders who are eligible for the death penalty and to ensure that it is imposed fairly and accurately. He has been the most outspoken critic of the death penalty on the current court.

I recognize that much can get lost in such pieces, even when they are written by experienced, thoughtful, and sympathetic interviewers such as Rosen. Perhaps Stevens gave some further explanations that were omitted, or perhaps Rosen’s paraphrases are not quite right. But what I see in the article strikes me as a perplexing chain of reasoning.

There follow three bullet points which, if you’re a right-thinking rational individual like me, will line up hand-in-glove with the explosions of “Whisky Tango Foxtrot” percolating between your ears as you read through Justice Stevens’ hackneyed preponderances.

Justice John Paul Stevens has, at the very least, achieved the first milestone of insanity and probably the second as well. He’s in some wonderful company there. But more seriously than those, he’s failing to uphold his sworn duty. He is what Scalia was talking about in the quote above.

While I agree that Steven’s “logic” is contorted into a mobius strip, do you not think there are times when law conflicts with morality? If I am to cede my position in favor of law over morality where does that leave us? Suppose the death penalty were the punishment for breaking any law, would a judge be wrong to vacate a conviction or overturn a jury’s verdict?
- Duffy | 11/01/2007 @ 09:13
Since a judge’s job is to apply the law, then yes, a judge would be wrong to vacate a conviction in that instance. This is the problem with legislating from the bench, it subverts the judicial process. If judges do not like the laws they are sworn to uphold, then they should resign, run for Congress, and change the laws they object to.

Justice Stevens is confusing emotion with logic, with predictably chaotic results.
- chunt31854 | 11/01/2007 @ 09:49
Absolutely, he would. When I say he’s crossed the first milestone to insanity, what I’m accusing him of doing is failing to understand the distinction between the subjective and the objective, or repudiating the knowledge of that distinction he might have had before.

Now, the point of law, ultimately, is to translate the subjective into the objective. “Don’t drive your car too fast” is subjective; “don’t drive over 55 mph” is a standard, made objective, so that the law may be enforced. Stevens might defend his position by saying any officeholder, any officer, in public service or in a private organization, holds the authority to likewise translate the subjective into the objective. But there are two problems with this.

One, as an officer of the judicial branch, Stevens holds authority within a limited jurisdiction. His authority to declare acts and statutes unconstitutional, is derived from a responsibility he has to interpret the ramifications of a lesser law within the constraints of a greater one (the U.S. Constitution). The Virginia legislature legislates, he interprets. If the Virginia law isn’t absolutely, positively, irreconcilably incompatible with the Constitution, he can back off the legislating — it has been done. He has no more right to interfere, than a referee has to score a touchdown for the other side when he doesn’t like how the last touchdown was scored.

Two…I don’t think this is Stevens’ position at all, that he’s using his offce to translate the subjective to the objective. I think when he talks about morality, he is laboring under the delusion that he’s describing a measurable thing. He says something’s wrong, and if your own moral compass says something different, there must be something wrong with you because his “reading” is the accurate one. I think it’s just-plain-arrogance, it’s a form of insanity, and it’s the strongest evidence yet that it’s time for the senior member to hang it up and go.

But since I’m not insane, I understand this is just my opinion…
- mkfreeberg | 11/01/2007 @ 10:06
Apologies chunt, I should’ve moderated comments before replying to Duffy. You and I think alike. Echo, echo, echo…
- mkfreeberg | 11/01/2007 @ 10:28
Suppose the death penalty were the punishment for breaking any law, would a judge be wrong to vacate a conviction or overturn a jury’s verdict?

You can suppose all you want, but that isn’t the punishment for breaking just any law because the legislators who made the law didn’t make it that way. This is how government by the people is supposed to work. Supposing an alternate universe where there existed a U.S. law just about everyone would think was unjust rather than one a small minority of people is unjust (and they can’t convince their friends and neighbors to vote for legislators who believe otherwise) is a red herring.

In a nutshell, it is not a Judge’s place to make laws, only to interpret them. Legislators make laws. Judges interpret. That’s the way it was set up, and it was set up for a good reason. The more we muck with that (and we have mucked with that quite a bit in the last century) the worse off we are.
- philmon | 11/01/2007 @ 11:36
[…] check the full story here […]
- Pearl Harbor and the Death Penalty | trudesks | 11/01/2007 @ 13:12

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Pearl Harbor and the Death Penalty
Wednesday, October 31st, 2007