In his new book, Six Amendments: How and Why We Should Change the Constitution, the retired Supreme Court justice describes how he would rewrite our Founding document if it were up to him. Among his proposed changes, the one that has gotten the most attention is an addendum to the Eighth Amendment explicitly barring the death penalty. Andrew Cohen urges Stevens, whose voting record during his 35 years on the Court was largely pro-capital punishment, to embrace abolitionism as a sort of penance:
I have written before about how continuing exposure to capital cases turns Supreme Court justices from supporters to opponents of the death penalty. About how no one on the Court who sifts through the litany of unfair capital trials bubbling up from state courts ever becomes a more ardent supporter of the death penalty. Justice Stevens is just the latest example of this frustrating phenomenon. These jurists see the light—almost always too late to do any good.
Except it is not yet too late for Justice Stevens.
In Six Amendments, he directly criticizes Justice Antonin Scalia’s tendentious capital jurisprudence, and he should continue to do so as he now embarks upon his book tour. Freed from his obedience to Court precedent, and his self-imposed constraints as a judge, Justice Stevens should shout as loudly as his modest demeanor permits about the injustices he sees in the administration of the death penalty.
Damon Root holds up Stevens as an example of how Justices’ devotion to precedent sometimes overshadows their vow to uphold the Constitution:
In the 2008 case Baze v. Rees, the Supreme Court ruled that Kentucky’s use of lethal injection did not qualify as “cruel and unusual” under the Eighth Amendment. Justice Stevens joined in that outcome, but also filed a separate concurrence where he said the death penalty was unconstitutional in all forms. How did he reconcile those clashing positions? “This Court has held that the death penalty is constitutional,” Stevens wrote, “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 Eight Amendment.” Put differently, Stevens did not like those precedents, but he believed he was bound to follow them.