I'm not a regular reader of The New York Review of Books, but I wasn't going to miss newly-retired Supreme Court Justice John Paul Stevens's essay on capital punishment in the latest issue. Last Sunday, in a Page 1, above-the-fold story, The New York Times spotlighted the Stevens piece as a "candid" and "remarkable" piece of writing that finally settled a "legal mystery" -- namely, why Stevens had changed his original view on the death penalty, and announced in 2008 that he now considered it to be unconstitutional.
Whether Stevens's metamorphosis was in fact such a "mystery" is debatable. A moderate Republican when he was appointed by President Ford in 1976, Stevens had long since migrated to the other side of the ideological divide. By the mid-1980s he was already voting more often than not with the court's liberal bloc, and by 1994, to quote The New Yorker's legal-affairs writer Jeffrey Toobin, Stevens had "become the undisputed leader of the resistance against the conservatives on the Court." Capital punishment was just one of many issues -- racial preferences, gay rights, free speech, church/state separation -- on which Stevens came to champion staunchly liberal positions. Well before the 2008 concurrence in which he proclaimed the death penalty to be a violation of the Eighth Amendment in all cases, his growing opposition to executions was evident.
That opposition is restated in Stevens's new essay, a mostly positive review of a new book, Peculiar Institution: America's Death Penalty in an Age of Abolition by David Garland, a professor of law and sociology at New York University. Early in his study, Garland cites the view of "many commentators" who "view contemporary capital punishment as a continuation of the nation's history of racial violence and lynching" -- an inflammatory view with which Stevens appears to concur. The former justice echoes that language in writing about the 1987 case of McCleskey v. Kemp, a 5-to-4 decision in which the court upheld a murder conviction and death penalty even though academic research proved that sentences of death were more common when the murder victim was white.
Are We Really Surprised Democrats Who Booed Jerusalem Will Boycott Netanyahu's Speech? | Katie Pavlich
Artist Reveals Bill Clinton's Official White House Portrait Has Monica Lewinsky Reference | Christine Rousselle