What is a judicial fiat, anyway?

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12 Responses

  1. I’m not sure which is less flattering to Justice Stevens': that he belives the death penalty unconstitutional (despite it being expressly accounted for in the constitution) or that, having identified it as unconstitutional, he votes to allow it anyway. Had he been presented the opportunity, could he have voted to overturn Dred Scott with this reverence for precedent?

  2. Orin Kerr says:

    Alice,

    I understood Stevens’ position to be that he wasn’t going to vote that way in every case from now on — a pragmatic call, given that he is alone in his position and he will greatly lose influence among the Justices in death penalty cases if he started doing that — but that he would be looking for a future case to begin taking that position that he has now announced. That seems different from Cassell’s view, which was that the law was wrong but he was without authority to change it.

  3. Paul D says:

    Maryland Conservatarian: I’m not sure which is less flattering to Justice Stevens': that he belives the death penalty unconstitutional (despite it being expressly accounted for in the constitution)

    I’d be really interested to know where you think the Constitution “expressly account[s]” for the death penalty.

  4. Dan says:

    Paul D – Maryland Conservatarian is referring to an argument Justice Scalia has been making, The argument puts forward that the 8th Amendment cannot be interpreted to bar capital punishment because the 5th Amendment’s text specifically accounts for the death penalty with its referral to capital crimes.

  5. It expressly accounts for hacking off limbs, too — exactly why so many find that argument so flat. This thread has become a depressing echo chamber for execution. Stevens’s words were measured in that opinion and very obviously the work of judge who is conflicted about his role given the conflict among different sources of reasons for/against the death penalty. Normally this blog spurs and nurtures actual exploration of the reasons in such circumstances. Here — not so much.

  6. John Sproston says:

    There is a fine irony in Scalia’s complaint about Steven’s apparent demonstration of “judicial fiat”. He conveniently forgets that the 2000 presidential election was decided by his court by precisely the “purest” example of judicial fiat, in which he participated, thereby trumping the electoral process to achieve what most Supreme Court members wanted, a Republican White House. And he now has the gall to try blaming Gore for the Court’s intervention.

  7. John Sproston says:

    If we look for the purest example of “rule by judicial fiat” why look further than the Supreme Court’s partisan interference in the outcome of the 2000 presidential election? It is ironic in the extreme that Justice Scalia would criticize Justice Stevens for that, having inserted himself into the election controversy in order to trump the electoral process, thereby installing an administration more to his personal taste and that of most of his peers.

  8. John Sproston says:

    If we look for the purest example of “rule by judicial fiat” why look further than the Supreme Court’s partisan interference in the outcome of the 2000 presidential election? It is ironic in the extreme that Justice Scalia would criticize Justice Stevens for that, having inserted himself into the election controversy in order to trump the electoral process, thereby installing an administration more to his personal taste and that of most of his peers.

  9. John Sproston says:

    If we look for the purest example of “rule by judicial fiat” why look further than the Supreme Court’s partisan interference in the outcome of the 2000 presidential election? It is ironic in the extreme that Justice Scalia would criticize Justice Stevens for that, having inserted himself into the election controversy in order to trump the electoral process, thereby installing an administration more to his personal taste and that of most of his peers.

  10. John Sproston says:

    Having tried twice in vain to put in my two cents’ worth, I have to assume that my comments are unwelcome because they are not “concurring opinions” ; Thanks a lot!

  11. Trust me, Mr. Spostron, any comment that references the Bush-Gore decision in a negative way will always be a Concurring Opinion with most of the posters at this site.