Does the Eighth Amendment Turn on the Size of Your R-Squared?
Check out the dispute between Justice Stevens and Justices Scalia (and Thomas) in Baze v. Rees. Both sides concur in the Court’s judgment, but Justice Stevens, arguing that the death penalty fails a CBA, notes:
And Justice Scalia, responding to the deterrence point, writes:
Earlier this semester, I taught a class on the empirics of deterrence (with a focus on the death penalty). It strikes me that Justice Scalia has the better of the argument here, if he is read to say that knowing whether the death penalty deters (or not) sounds like the kind of question that is answerable with data, but probably is not, at least for now. As John Donohue and Justin Wolfers, who Justice Stevens somewhat ironically relied upon, argued:
Further, Supreme Court Justices don’t have the training or staff necessary to sort through competing empirical studies and reach a definitive conclusion. (Justice Stevens’ weighting of studies notwithstanding). And even were the Court to appoint a “special statistics master,” can a constitutional question of this magnitude turn on econometric rabbit-holes?