Shifting into reverse

Dan Rodricks

July 01, 1991|By Dan Rodricks

Last Thursday, in an action that served as a conservative' way of thumbing his nose at departing Justice Thurgood Marshall, the Supreme Court reversed a decision it had made only four years ago regarding the death penalty, providing further assurance -- if such assurance was needed -- that the conservative majority is on the fast track to dismantle important law, no matter how recent its vintage and no matter how mixed the resulting message.

Just four years ago, the Supreme Court ruled, in a criminal case that originated in Baltimore, that the use of victim-impact statements during jury sentencing in death penalty cases was unconstitutional. Evidence about the impact of a murder on members of the victim's family "can serve no other purpose than to inflame the jury and divert it," the majority said. Jurors, it said, are generally aware of the emotional torment inflicted upon families of murder victims. It is, however, the task of the jury to focus on the law, the facts and the person convicted of the crime.

This, in the grand scheme of death penalty rulings, was considered an important decision by the court. In an era of increased activism and emotionally charged lobbying by victims-rights groups and of state governments responding to them -- both of which sprang from American society's increased desperation over crime -- the Supreme Court drew a line for death penalty cases; it did not prohibit the use of impact statements in other cases. The court said that, should a jury hear evidence of family impact or evidence regarding the character of the victim, it could impose the death sentence "because of factors about which the defendant was unaware, and that were irrelevant to the decision to kill."

That was 1987.

Now the court, which, of course, has changed in composition since then, believes that neither victim-impact statements nor the testimony of mourning family members will taint a jury's delicate and difficult task of deciding whether a criminal should be executed by the state. In last Thursday's 6-3 ruling, the Supreme Court reversed itself and allowed victim-impact testimony in death penalty sentencing. Chief Justice William H. Rehnquist said that doing otherwise would deprive "the state of the full moral force of its evidence."

The facts of the cases involved had not changed. The law had not changed. The constitutional principle had not changed.

The court had changed.

The ruling, along with others to come, deprives the Supreme Court of the full moral force of its authority. It invites defiance. Why?

Because it didn't seem to bother Rehnquist or anyone else in the majority that such a dramatic reversal in such a short interval -- a jettisoning of an important ruling -- might cause the public to question the court's motivations. Or to at least scratch its collective head over a mixed message.

Is this a Supreme Court that adheres to its own precedent as a way, among others, of upholding the Constitution against the flash floods of political change? Or is it a court made up merely of eight Representative Men and one Representative Woman, bringing to the Supreme Court the same kind of personal agendas politicians and other muldoons bring to Capitol Hill?

There's no question what we are dealing with now.

Antonin Scalia -- Justice Conan the Destroyer -- has been relatively open about his personal feelings for previous court decisions. Here's what Scalia said about precedent, in the context of the victim-impact question, in 1989: "I would think it a violation of my oath to adhere to what I consider a plainly unjustified intrusion upon the democratic process in order that the court might save face. We provide far greater reassurance of the rule of law by eliminating than by retaining such a decision."

What reassurance does a public get from a court that changes its mind every four years?

The victim-impact ruling is just one example of the high court's fast track to roll back the clock on constitutional progress in this nation.

We had better get used to it. In his departing remarks last week, Justice Marshall offered up a list of recent rulings he called "endangered precedents." A court that, within the last decade, protected the insane from capital punishment, affirmed a woman's right to an abortion and barred government financial aid to parochial schools could reverse each of those rulings, and many more. The Supreme Court of the United States -- driving us to the future in reverse.

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