Supreme Court Justice John Paul Stevens, who passed at age 99 on July 16, insisted that he was not a liberal jurist but a conservative sitting on a bench that over time had drifted to the right, leaving him crowned as a leader of the liberal wing of the Court during most of this three decades of service. Stevens was appointed by President Nixon in 1970 to the federal district court of appeals and later, by President Gerald Ford, to SCOTUS.
Stevens might best be characterized as a pragmatic justice but one who was willing to engage his Court colleagues in tests of judicial interpretation. Notably, Stevens was not inclined to originalism, and dissented from Justice Antonin Scalia’s majority opinion in the 2008 Heller decision finding a Second Amendment right for individuals to bear arms; Stevens argued that the majority discarded precedent and engaged in selective interpretation of history to create a rationale for its conclusion.
Perhaps it is ironic that, in a 2002 decision (Atkins v. Virginia) concerning the death penalty, Justice Scalia, dissenting from Stevens’ majority, wrote “seldom has an opinion of this court rested so obviously upon nothing but the personal views of its members.” Dueling in words in the chambers is not unknown.
Over the course of his tenure, Stevens expressed deep disillusionment with the death penalty, although he consistently sought to find administration of the penalty by states within the law. However, in a PBS interview in 2014, four years after retiring from SCOTUS, he said:
… [T]he court made a grave mistake in formulating rules that slant the opportunity for justice in favor of the prosecutor in death penalty cases, particularly when the cost is so high if you make a mistake.
In his criticism, the Justice took issue with a SCOTUS decision that allowed prosecutors to strike from jury panels any citizen who expressed opposition to the death penalty as a violation of the very nature of the concept of a jury of one’s peers. Taking note of the mounting number of death penalty reversals based upon new evidence, Stevens believed this was an essential failure of the criminal justice system.
Atkins represented a paradigm for these criticisms but its ultimate outcome escaped the Court’s ruling that the death penalty violated the “cruel and unusual” criterion of the Eighth Amendment. At trial in Virginia, Daryl Atkins was convicted of murder, partly upon testimony of a codefendant, and sentenced to death. Some evidence had been introduced indicating that Atkins was mentally disabled, and SCOTUS reviewed the findings, concluding that the “relationship between mental retardation and the penological purposes served by the death penalty” justifies a conclusion that executing the mentally retarded is cruel and unusual punishment. The goal of retribution, the court found, is not served by imposing the death penalty on a group of people who have a significantly lesser capacity to understand why they are being executed.
On remand to the Virginia courts to review defendant Atkins’ mental capacity, a Virginia jury in 2005 concluded that Atkins was sufficiently intelligent to be executed; the execution was set but later delayed. In 2008, however, a Virginia judge received allegations of prosecutorial misconduct that could require vacating the entire criminal conviction and result in a new trial. Instead, the court found the evidence of the defendant’s participation in a felony murder overwhelming, and commuted the sentence to life in prison.
The prosecutorial misconduct came to light ten years following the original conviction, from an attorney who represented the codefendant. Evidence established that testimony of the codefendant which, in part, supported the conviction of felony murder, had been coaxed and manipulated by prosecutors. Thus, while Atkins avoided the death penalty, a question remains as to whether justice was fully served. The PBS comment by Stevens likely reflected this concern and prompted his skepticism about the Court’s rulings favoring prosecutors determined to obtain death penalty convictions.
At the least, one vulnerable Virginian’s life was saved by Stevens’ judicial challenge to a deeply held American cultural belief. We will never know how many more lives were preserved from cruel and unusual punishment as a result of the insight of one jurist. RIP, Justice John Paul Stevens, in Virginia’s Arlington National Cemetery.
Some may know that Justice Stevens was an avid golfer. In Northern Virginia many private clubs have retired men’s golf teams that play home and away matches. I’m a member of one of these teams at the Springfield Golf & Country Club. One day we were at the Washington Golf Club in Arlington. Our team captain was assigned to play with some Washington Golf players. One of them introduced himself as John, and they played their round, which takes 4 hours or so. Nobody mentioned that John was the retired SCOTUS justice. Our captain found out after the round and told us John was a regular guy who told some good jokes.