What is a judicial fiat, anyway?
Justice Scalia’s strong words in Baze v. Rees, directed at Justice Stevens’s concurrence in the same case, attracted praise at the Volokh Conspiracy (and from Dave Hoffman here) last week. In Baze, Justice Stevens announced that he now believes the death penalty to be cruel and unusual punishment and a violation of the Eighth Amendment. Justice Scalia replied that “[p]urer expression cannot be found of the principle of rule by judicial fiat.” To which my esteemed colleague former-Judge-and-now-again-Professor Paul Cassell (guest-blogging at Volokh) replied, “Amen.”
I’m surprised that most discussions of the Scalia-Stevens dispute (like Scalia’s own concurrence) fail to mention the last paragraph of Stevens’s opinion, or the way Stevens actually voted. After explaining his view that capital punishment is unconstitutional, Stevens concurred in the judgment that Kentucky’s method of execution was constitutionally permissible. Here’s how Stevens concluded:
The conclusion I have reached with regard to the constitutionality of the death penalty itself makes my decision in this case particularly difficult. It does not, however, justify a refusal to respect precedents that remain a part of our law. This Court has held that the death penalty is constitutional, and has established a framework for evaluating the constitutionality of particular methods of execution. Under those precedents … I am persuaded that the evidence adduced by petitioners fails to prove that Kentucky’s lethal injection protocol violates the Eighth Amendment. Accordingly, I join the Court’s judgment.
What constitutes judicial fiat? Is the argument that a judge musn’t even say that he thinks a practice violates the constitution, even if he is then going to recognize and follow precedents to the contrary?
When I read Stevens’s concurrence last week, the last paragraph reminded me of one of then-Judge Cassell’s opinions. In 2004, as a federal judge in the district of Utah, Cassell authored a widely noted opinion in United States v. Angelos (345 F. Supp. 2d 1227). Weldon Angelos was a first-time offender convicted of selling marijuana. The government applied a federal firearms statute with severe mandatory minimums, thus ensuring what was almost certainly an effective life sentence for Angelos. Judge Cassell wrote, “[t]he court believes that to sentence Mr. Angelos to prison for the rest of his life is unjust, cruel, and even irrational.” But out of deference to Congress and to existing constitutional precedents, Judge Cassell “reluctantly” applied the unjust, cruel, and irrational mandatory minimum and sentenced Angelos to 55 years and a day.
A fiat is (besides an Italian car) an authoritative (and maybe, an arbitrary) order, one that translates automatically to action. The word fiat comes from Latin for let it be done. The funny thing about Stevens’s concurrence is that he didn’t let it be done — or rather, he let executions rather than his own will be done. He refused to let his own judgment that capital punishment is unconstitutional translate to a vote against capital punishment in Kentucky.
At any rate, seems odd to impugn Stevens for judicial fiat without at least mentioning the way he voted in Baze.
Image of Fiat’s brilliant red Barchetta courtesy of www.leepurr.co.uk.