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.”

Fiat_Barchetta.JPGI’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.

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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.