The Washington Post reports (here 
) about the Supreme Court’s decision this week upholding the Constitutionality of lethal injection as a means of execution.
The question in this case was not whether the death penalty is Constitutional, but rather whether lethal injection is an excessively painful means of causing death. The judges ruled that it was acceptable.
However, this ruling prompted a flare-up of the legal versus policy distinction that we talked about in class. Take a look at the news article .
Here’s what happened: In a concurring opinion, Justice Stevens made the strange argument that he was (1) voting to uphold lethal injection even though (2) he is convinced that capital punishment is not Constitutional. This is a significant reversal; in 1976, Stevens wrote the majority opinion for the court re-instating the death penalty as a Constitutional punishment.
Scalia wrote a separate concurring opinion attacking Stevens for this change. He wasn’t upset with the fact that Stevens has changed his mind so much that he was upset with the reasons Stevens gave. From the Washington Post:
“The time for a dispassionate impartial comparison of the enormous costs that death penalty litigation imposes on society with the benefits that it produces has surely arrived,” Stevens wrote in an opinion that nonetheless concurred with the court’s decision to uphold Kentucky’s method of lethal injection.
…
He wrote that he “relied on my own experience” in forming the decision.
Given our discussion last Wednesday, you should recognize those as policy arguments, not legal arguments. A legal argument would be based on Constitutional precedent, not on a policy’s costs and benefits. For example, a legal argument might look like this: “The Bill of Rights forbids ‘cruel and unusual punishment.’ As a society, our understanding of ‘cruel and unusual’ has changed since 1976. Therefore, the death penalty is no longer Constitutional.” (I’m not saying that such an argument is necessarily correct, only that it is based more on legal claims than on policy claims.)
But since Stevens used a policy argument instead of a legal argument, his reversal is much more contentious, leading to Scalia’s vicious (and mocking) response:
“Purer expression cannot be found of the principle of rule by judicial fiat,” Scalia wrote. “In the face of Justice Stevens’ experience, the experience of all others is, it appears, of little consequence. . . . It is Justice Stevens’ experience that reigns over all.”
Translated into normal English, Scalia is accusing Stevens of imposing his policy preferences on America (via Court rulings) rather than merely interpreting the Constitution. Presumably, Scalia would have no complaint if individual states chose to cease using the death penalty; his complaint is that Stevens would force his policy preferences upon the states, even though (in Scalia’s view) the Constitution allows states to use the death penalty if they so choose.
I’m not saying that Stevens is right or wrong to oppose the death penalty. I’m not even saying that policy arguments should not necessarily be used by Supreme Court justices–that’s for you to decide. I only want to point this news story out as an example to help you see the difference between policy arguments and legal arguments–and to help you see that judges open themselves to pointed criticism when they use policy arguments instead of legal arguments.
We all agree that legislators can use policy arguments; we don’t agree that judges can use them. That’s the point in this news story; that was also the point I was trying to convey on Wednesday.
