John Paul Stevens is going to be on 60 minutes tonight, and his essay on the death penalty will appear online in the New York Review of Books this evening:
In Payne v. Tennessee in 1991, for instance, the court overruled a 1987 decision, Booth v. Maryland, that had banned statements from victims at sentencing because of their tendency to inflame juries.
“I have no doubt that Justice Lewis Powell, who wrote the Booth opinion, and Justice William Brennan, who joined it, would have adhered to its reasoning in 1991 had they remained on the court,” Justice Stevens wrote. “That the justices who replaced them did not do so was regrettable judicial activism and a disappointing departure from the ideal that the court, notwithstanding changes in membership, upholds its prior decisions.”
I’ll await David Broder’s rebuke, since we all know that only liberals can be activist judges.
WereBear
Remember, it’s only wrong if a liberal does it.
JPL
Doesn’t it depend on the definition of activist?
eric
here is the irony: you have conservative AND liberal justices bemoaning failed adherence to precedent (for conservatives, their eyes have to wonder back further in history to find their idols); yet it is clearly a supra-constitutional principle that requires a non-textual reading of due process (much, much less of a problem for liberal judges).
In the end, there is nothing inherently wrong with departing precedent in the name of some other constitutional value. It just hurts more when your values are getting Gored.
gnomedad
“Judicial activism” means judges returning decisions wingers don’t like. Period.
danimal
OK, here’s your Judgin’ 101 Cliff’s Notes.
Judges are either “adhering to constitutional values” or “returning to constitutional values” depending on whether conservatives agree with precedent. Judicial activism is reversing rulings in line with constitutional values (aka the intent of the founding fathers).
This isn’t too hard as long as you know one thing: the current political needs of the conservative movement.
Please note that the needs of the conservative movement can change, and thus the intent of the founding fathers changes over time.
Got it??? Good.
BDeevDad
This quote says a lot about what he thinks of some of today’s Justices.
Joseph Nobles
Interestingly enough, the judges helping to overturn precedent in the Payne v. Tennessee case were Kennedy and Souter. So, yeah, the addition of Roberts and Alito must really aggravate him.
Brachiator
Thanks for the tip. I was going to skip TV watching tonight, but now I will make sure to watch.
This has been an interesting week for the Supremes. I previously noted a very engaging interview with Justice Ruth Bader Ginsburg on Pat Morrison’s radio talk show on public station KPCC.
The interview is also available as an iTunes podcast. Justice Ginsburg noted how some observers are a bit surprised to see three women on the Court when they come into the court. I think she also noted that the women justices are on both ends, and one justice in the middle of the seating arrangement. I could only imagine Elana Kagan responding to anyone who looked surprised, “Yeah, bitches, bitches. You better recognize.”
SFAW
I keep waiting for Scalito and Roberts and Clarence the (Cross-Eyed?) Sock Puppet to find a way to get the three-fifths clause reinstated, because it was “original intent that we can believe in”.
Of course, knowing Scalito et al., they’d allow “those” people to keep their full vote – if they vote Republican.
DPirate
Fitting they give him his middle name, like they do assassins.