Below is an essay for our thirty-day series on John Paul Stevens by James Liebman, the Simon H. Rifkind Professor of Law at Columbia Law School. Liebman was a clerk for Justice Stevens during the 1978 Term and has since argued several capital and habeas corpus cases before the Supreme Court.
As he prepares to retire from the Supreme Court, Justice Stevens is justly being hailed for his intellect, independence, leadership, and grace. I would add another encomium: innovative legal problem solver. I don’t mean someone who looks to the law to solve social problems. I mean a judge who looks to the law to solve its own problems – someone who believes deeply in the law’s integrity but instead of assuming the law is perfect, assumes it has a capacity for self-correction.
The meaning of the Eighth Amendment as applied to the death penalty is an example of a legal problem Justice Stevens has led the Court in trying to solve. The Eighth Amendment is problematic, of course, because it obliges judges to invalidate “cruel and unusual punishments” while providing so little evidence of its meaning that it tempts judges to enforce their own, not the law’s, values. Nor are there easy fixes, such as Justice Scalia’s idea that the provision only bans punishments not authorized by statute – as if “cruel and unusual” meant “cruel and illegal” and didn’t bear at all on whether, for example, Congress or a state legislature could prescribe death as a punishment for illegal immigration.