What the Law Commands

That's the title of a post by Linda Greenhouse at the New York Times Opinionator blog.  LINK  As with anything the retired Times' Supreme Court correspondent writes, it's a must-read.  I'm going to focus on one section of her post.

The proof of how alike the two justices really are, of course, will lie not in their rhetoric, but in their votes. The Supreme Court term is off to an unusually slow start, with little evidence of what is happening behind the scenes. But little is not none. Last week, the court was faced with deciding whether to grant a stay of execution to John Allen Muhammad, better known as the sniper who killed 10 people in the Washington area during a few terror-filled weeks in the fall of 2002.

The justices were scheduled to consider Mr. Muhammad’s final appeal at their regular conference on Nov, 24. But Virginia nonetheless set the execution date for Nov. 10, an unseemly practice of rushing the clock that death-penalty states have engaged in for years and that has been a long-running source of tension within the court.

The justices were unanimous in turning down the stay, finding the request without legal merit. But Justice John Paul Stevens, who has objected to similar artificially created deadlines in the past, issued a statement complaining of “the perversity of executing inmates before their appeals process has been fully concluded.” The court should stay an execution any time the justices have not had a chance to consider whether to grant review of the inmate’s initial habeas corpus petition, Justice Stevens said, adding that it was a matter of avoiding “irreversible error” and “preserving basic fairness” to give death-row inmates “the same procedural safeguards that ordinary inmates receive.”

Two other justices signed Justice Stevens’s statement: Ruth Bader Ginsburg and Sonia Sotomayor.
Justice Ginsburg has signed similar statements in the past, so her action was essentially foreordained. But Justice Sotomayor was writing on a clean slate, in a case in which she had no ability to influence the outcome. Justice Stephen G. Breyer, often an ally of Justices Stevens and Ginsburg, did not sign. It is not certain whether Justice Sotomayor’s predecessor, Justice David H. Souter, would have signed either.

Clearly, Justice Sotomayor found the rushed execution date troubling. But that does not fully explain her decision to stand with Justices Stevens and Ginsburg in calling publicly for a change in the court’s procedure. Joining in the implicit criticism of a majority of her new colleagues could not have been a casual decision. Something deeper must have been at work. Was she sending a signal? If so, of what?

Perhaps this case gave the new justice a chance to acknowledge, obliquely but publicly, that she does understand, after all, that something beyond an abstraction called “the law” determines how judges behave. As a great judge, Benjamin N. Cardozo, expressed it 90 years ago: “We may try to see things as objectively as we please. Nonetheless, we can never see them with any eyes except our own.”

Earlier coverage, with an additional link to Justice Stevens' statement, is here.