Generally, when someone has held a job--at the top of his field, no less--for thirty-three years, I am loathe to suggest he deny himself his well-earned retirement and the enjoyment of his pension.
Justice Stevens, I am sorry to say, needs to live to 110 and never retire.
Now that President-Elect Obama is preparing a transition, the longest-serving Justice on the Supreme Court (second-longest serving justice ever, second-oldest ever) might well be considering how to make his own exit after more than three decades of service.
And it has been estimable, laudable service at that. Which is why his absence would create a major vacuum in at least one critical area of the current legal debate: the death penalty.
Back in 2005, while speaking to the American Bar Association, Justice Stevens waxed eloquent on the legacy of Thurgood Marshall, and his own views on capital punishment. It's an incredible speech:
While his victory in Brown v. the Board of Education of Topeka, Kansas may well be primarily responsible for the recognition of Thurgood Marshall as a national hero, I am persuaded that his years of dedicated advocacy in countless trial court proceedings in hostile surroundings provide even stronger evidence of his heroic contribution to the cause of civil rights and equal justice than his success as an appellate advocate. His vast experience as a trial lawyer gives especial credence to opinions that he later delivered as a member of the Supreme Court. For example, his career informed his view that peremptory challenges are an unacceptable source of arbitrariness - a view recently endorsed by Justice Breyer in his thoughtful concurrence in Miller-El v. Dretke - and his consistently expressed view that capital punishment should never be administered in a civilized society.
Thurgood's rejection of the death penalty rested on principles that would be controlling even if error never infected the criminal process. Since his retirement, with the benefit of DNA evidence, we have learned that a substantial number of death sentences have been imposed erroneously. That evidence is profoundly significant - not only because of its relevance to the debate about the wisdom of continuing to administer capital punishment, but also because it indicates that there must be serious flaws in our administration of criminal justice. Many thoughtful people have quickly concluded that inadequate legal representation explains those errors. It is true, as many have pointed out and as our cases reveal, that a significant number of defendants in capital cases have not been provided with fully competent legal representation at trial. That, however, is by no means the only defect in the system. Indeed, some of the best lawyers in the country have spent countless uncompensated hours in capital litigation, not only in post-conviction and appellate work, but also at the trial level. The profession can be justly proud of their work. My review of many trial records during recent years has, however, persuaded me that there are other features of death penalty litigation that create special risks of unfairness.
In many of these cases the outrageously brutal facts cry out for retribution. In close cases it must be extremely difficult for jurors to resolve doubts in favor of permitting a possible perpetrator of a heinous crime to go free. Gruesome facts pose a danger that emotion will play a larger role in the decisional process than dispassionate analysis.
Two aspects of the process of selecting juries in capital cases are troublesome. In case after case many days are spent conducting voir dire examinations in which prosecutors engage in prolonged questioning to determine whether the venire person has moral or religious scruples that would impair her ability to impose the death penalty. Preoccupation with that issue creates an atmosphere in which jurors are likely to assume that their primary task is to determine the penalty for a presumptively guilty defendant. More significantly, because the prosecutor can challenge jurors with qualms about the death penalty, the process creates a risk that a fair cross-section of the community will not be represented on the jury.
Two aspects of the sentencing process tip the scales in favor of death. The fact that most of the judges who preside and often make the final life-or-death decision must stand for re-election creates a subtle bias in favor of death. Moreover, the admissibility of victim impact evidence that sheds absolutely no light on either the issue of guilt or innocence, or the moral culpability of the defendant, serves no purpose other than to encourage jurors to decide in favor of death rather than life on the basis of their emotions rather than their reason. It was this issue that Thurgood addressed in his dissent in Payne v. Tennessee on the last day of his service on the Court.
And consider his opinion in Baze v. Rees:
The thoughtful opinions written by The Chief Justice and by Justice Ginsburg have persuaded me that current decisions by state legislatures, by the Congress of the United States, and by this Court to retain the death penalty as a part of our law are the product of habit and inattention rather than an acceptable deliberative process that weighs the costs and risks of administering that penalty against its identifiable benefits, and rest in part on a faulty assumption about the retributive force of the death penalty.
...I have relied on my own experience in reaching the conclusion that the imposition of the death penalty represents “the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes. A penalty with such negligible returns to the State [is] patently excessive and cruel and unusual punishment violative of the Eighth Amendment .” Furman, 408 U. S., at 312 (White, J., concurring).
Justice Stevens has an incredible personal record on the death penalty, having joined the decision that re-allowed capital punishment in the 1970s, then discovering over 30 years what a mistake he had made. But the critical point is that he joined the Court as a proponent of the death penalty, and came to the opposite position--the position I feel is correct--after only a lengthy examination of the issue over the course of a career.
Now, consider this: what is the likelihood that President Obama will nominate any replacement for Justice Stevens who is as strong or forthright as the Associate Justice on this issue, one that is still of critical importance and receives far too little attention?
Even with Barack Obama's commitment to reform, and the opportunities he had to examine the Illinois death penalty as a legislator in that error-plagued state, I think it's unlikely that this will prove to be a hill he's willing to die on.
Which leaves us with a pressing need for Justice Stevens to continue providing a clarion voice on capital punishment. These issues will continue to be litigated as we evolve as a society away from this embrace of state-administered revenge, and without a leader like Justice Stevens writing brilliant dissents and scathing concurrences, we may never reach the day where a Justice can pen the majority opinion ending this barbarism once and for all.
(And, as an added bonus, it would piss off Ann Coulter.)
So please, Mr. Associate Justice, until we reach a point where the Senate and the President have the political courage to stand against the death penalty, or until you receive a guarantee from the President that any nominee for your seat will share yours opinion on capital punishment, please hang on and keep coming in to work.
And don't accept any desserts from Ann Coulter.