Princeton University’s Program in Law and Public Affairs is hosting a panel discussion next Wednesday titled “Full Court Press: The Supreme Court, the Media and Public Understanding.”  The program will focus on issues of public understanding of the Court raised by Justice Sotomayor’s confirmation process over the summer.  The panel will feature Emily Bazelon and Dahlia Lithwick of Slate, Adam Liptak of The New York Times, and Jeffrey Toobin of CNN.

Coverage of yesterday’s arguments in Pottawattamie County v. McGhee and Wood v. Allen appears after the jump.

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As the Justices will hold their first private conference this Tuesday, the Supreme Court press corps turns its focus to the upcoming docket. Tony Mauro writes in the National Law Journal on the dominance of business cases in OT09 : more than half of the 45 docketed cases address business issues. His article focuses specifically on how former intellectual property lawyer and current Associate Justice Sonia Sotomayor may vote in cases ranging from patents (Bilski), antitrust (American Needle), or mutual funds (Jones). BusinessWeek also has a preview of OT09 business cases.

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In anticipation of Judge Sonia Sotomayor’s confirmation hearings, which begin Monday, July 13 at 10 a.m., we’ve organized by subject matter the dozens of published reports and substantive blog posts about her judicial record. (Links are below the jump; PDFs of longer, more formal reports are noted with an asterisk.) If we’ve left out other significant pieces that analyze her written decisions or provide data–rather than opine on her nomination generally–please e-mail us the link.

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The second case argued on December 10, 2008, AT&T v. Hulteen, stemmed from a decision out of the Ninth Circuit in favor of Noreen Hulteen and three other women who were denied full service credit for pregnancy leaves taken from AT&T between 1968 and 1976.  When the company calculated their pension benefits decades later, the women and the union who represent them sued under the Pregnancy Discrimination Act (PDA). 

Arguing on behalf of petitioner, Carter Phillips tried to persuade the justices that while the women’s claims were actionable when the credit was originally denied, any claim was now stale.  To require AT&T to credit the women, decades later, for their absences would upset the “competitive seniority” amongst employees.  Justice Ginsburg seemed unconvinced, suggesting that absent a felt application of their loss in seniority, there was “nothing to be done” in the time immediately following the leave.  Mr. Phillips emphasized that both Congress and the Supreme Court’s prior decisions have “consistently recognized” the rights of all members of the plan.  Phillips faced questions from Justices Ginsburg, Breyer, and Souter when he rejected respondents’ merits briefing classification of the benefits plan as facially discriminatory.  Since AT&T immediately changed its plan after the PDA was passed to henceforth credit pregnancy leaves like other temporary disability leaves, he argued that the plan must be in complete compliance and cannot be facially discriminatory.  Read the rest of this entry »

According to sources in the Justice Department and Senate Judiciary Committee, the Senate on Thursday confirmed Gregory G. Garre as United States Solicitor General. (See here for record of confirmation.) Garre, 43, had served as Acting Solicitor General since Paul D. Clement stepped down in June. Garre joined the office in 2000, serving as an Assistant to the Solicitor General until 2004 and as Principal Deputy Solicitor General since 2005. Following graduation from George Washington University Law School in 1991, he served as a clerk to Chief Justice William H. Rehnquist.

Garre argued five cases before the Supreme Court last term: for the respondent in Gomez-Perez v. Potter (06-1231) and Munaf v. Geren (06-1666); as amicus supporting the respondent in Board of Education of New York v. Tom F. (06-637) and Baze v. Rees (07-5439); and as amicus supporting the petitioner in Sprint/United Management v. Mendelsohn (06-1221).

When the Court grants certiorari in a case, it receives a copy of the record and the parties also compile a joint appendix. But what happens if counsel believes that the Court should have access to non-record materials?

In May 2003, as part of a series of amendments to the Supreme Court rules, the Justices established a straightforward procedure by which parties may “lodge” (not “file”) non-record material. Under Rule 32.3, any party or amicus must first describe such materials in a letter, served on all parties, along with an explanation why they are proper subjects for the Court’s consideration. Regardless of whether other parties consent to the lodging, parties may only submit the materials if the Clerk of the Court so requests.  The Rule was a response to the recurring tendency of parties and amici to file voluminous non-record material with the Clerk, much of it burdensome and not particularly illuminating.

Little has been written about practice under the Rule, so we thought it worth noting that the Court employed Rule 32.3 most recently in  an Indian-law case, Carcieri v. Kempthorne (07-526). In its brief on the merits, the federal government referred to four documents from the Department of the Interior written between 1936 and 1994. Three days later, the Solicitor General requested permission to lodge the documents with the Court, and on Tuesday the Clerk approved the request (docket here).

By our count, parties lodged non-record materials four times last term.  Following oral argument in Dada v. Mukasey (06-1181), the Clerk approved the petitioner’s request to lodge copies of filings and unpublished agency decisions in a similar immigration case (docket here). In Dept. of Revenue of Kentucky v. Davis (06-666), the Clerk approved the petitioner’s request to lodge copies of record material in an 1881 case, Bonaparte v. Tax Court (docket here). In Baze v. Rees (07-5439), the Clerk approved the respondent’s request to lodge a copy of a deposition transcript from the state of Kentucky’s medical expert (docket here). And in Boumediene v. Bush (06-1195), the Clerk approved the petitioners’ request to lodge records of unreported cases cited in petitioners’ brief (docket here).

Below, Karen Williams previews next term’s Bell v. Kelly (No. 07-1223). Karen is a summer associate at Akin Gump and a third-year at American University, Washington College of Law. Please note that the Bell SCOTUSwiki page, here, will continue to be updated throughout the upcoming term.

28 U.S.C. § 2254(d) provides that:

“[a]n application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.”

Pursuant to Section 2254(d), a federal court, therefore, does not determine if the state court’s determination was wrong but whether it was unreasonable, which is a higher threshold. The question before the Court is whether the Fourth Circuit erroneously applied Section 2254(d)’s deferential standard to a claim based on new evidence – not considered by the state court – that the habeas petitioner was prejudiced by the ineffective assistance of his counsel.

I. Background

This case stems from Edward N. Bell’s conviction in 2001 for capital murder for the death of Richard Timbrook, a police officer. On October 29, 1999, Officer Timbrook and two probation officers came across two men in a high-crime area of Winchester, Virginia. After one man ran, Timbrook pursued him on foot. During the chase, the fleeing man turned and shot Timbrook in the head. When Bell was found the next morning, hiding in the basement of a house near the shooting, he had gunshot residue on his hands. The murder weapon was found near that house, and forensic tests could not exclude Bell as a possible user of the weapon.
After interviewing Bell, his sisters, and his mother, defense counsel concluded that there was little evidence to mitigate the case against Bell. Defense counsel, comprised of two attorneys, did not interview Bell’s wife, past girlfriends, or children, nor did they inquire into Bell’s education or mental capacity. They also did not investigate the prosecution’s evidence of aggravation.

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While the Supreme Court’s opinions this Term produced sweeping rulings on the death penalty and on the rights of enemy combatants, the criminal law docket in OT07 was all about the details. Of the 24 cases on criminal law, 12 involved sentencing guidelines or felony definitions, and seven cases dealt with strictly procedural issues. (Here is a visual breakdown of the cases.)

Just over half of the decisions went in favor of criminal rights. Big wins for the accused included the ability of federal judges to depart from the federal sentencing guidelines in crack cocaine cases (Kimbrough and Gall), and of state courts to retroactively apply Supreme Court decisions to criminals seeking post-conviction relief even where federal judges cannot (Danforth).The Court gave wins to both prosecutors and defense attorneys.

While the Court ruled Kentucky’s protocol for lethal injections constitutionally sound (Baze), it barred states from applying the death penalty to convicted child rapists (Kennedy).The Armed Career Criminal Act played a central role in several cases and the Court came down with two different definitions of weapons “use” during a felony: receiving a gun in exchange for drugs doesn’t count (Watson), but having explosives on one’s person while committing a felony, even if unrelated to the crime in question, does (Ressam). Read the rest of this entry »

Commentary

The future of the death penalty as a constitutional matter might well be gauged by two bold declarations in the most significant cases on capital punishment that the Supreme Court  decided this term.

 On Wednesday, in Kennedy v. Louisiana (07-343), the Court’s five-Justice majority said at one point: “When the law punishes by death, it risks its own sudden descent into brutality, transgressing the constitutional commitment to decency and restraint.”  For a Court not yet ready to end the long-running constitutional experiment with the death penalty, it was a revealing utterance of near-revulsion at the process.

Back on April 16, in a separate opinion in Baze v. Rees (07-5439), Justice John Paul Stevens wrote that he had reached “the conclusion that the imposition of the death penalty represents ‘the pointless and needless extraction of life with only marginal contributions to any discernible social or political purposes.  A penalty with such negligible returns to the state [is] patently excessive and cruel and unusual punishment violative of the Eighth Amendment.’ “  With that, a fourth Justice in the nation’s history — after William J. Brennan, Jr., Thurgood Marshall and Harry A. Blackmun — converted to the abolitionist side on capital punishment.

The first of those two statements is clear evidence that the Court, at least as presently constituted, is determined not to “extend” or “expand” the reach of the death penalty (the use of the words “extend” and “expand” prompted some of the dissenting Justices’ most critical responses Wednesday).  And the second of those statements suggests, once more, that the longer a Justice stays on the Court and watches capital cases come and go, the greater the prospect that capital punishment will lose another vote and there will be an internal voice reinforcing any other Justice’s hesitancy.

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UPDATE Tuesday night

Virginia Gov. Tim Kaine turned down a request for clemency, allowing the execution of Kevin Green to proceed.  A statement by the governor can be found here.

The Supreme Court early Tuesday evening refused to delay the execution in Virginia of Kevin Green.  Simultaneously, the Court denied review of a new appeal by Green, raising issues about the time allowed for filing a habeas challenge.  The Court’s order, along with a dissent by Justice John Paul Stevens, joined by Justice Ruth Bader Ginsburg, can be found here.

Since the Court’s ruling in Baze v. Rees (07-5439) on April 16, clearing the way for the resumption of executions, the Justices have stayed only one scheduled execution — in the case of Edward Nathaniel Bell, another death-row inmate in Virginia.  The Court granted review of Bell’s appeal (Bell v. Kelly, 07-1223) on May 12; the key issue in that case is whether federal courts, in hearing challenges by state prisoners, must defer to state court findings even if the state court did not consider the evidence at issue.

In Virginia, Kevin Green was convicted of murder and sentenced to death for the 1998 shooting death of Patricia L. Vaughn at the grocery store she and her husband owned in Brunswick County, VA.  Green had previously been a customer at the store, mainly to cash his payroll checks from a nearby lumber company.

In his new appeal (Green v. Johnson, 07-10988), Green contended that his defense lawyers had improperly failed to appeal the robbery portions of his guilty verdict, even while appealing the murder conviction. They won a new trial on the murder count, but not on the robbery count, and this, Green contended, allowed the jury to learn about the robbery conviction — information that he argued increased the chances of his being convicted anew of murder and sentenced to death.  He was denied a chance to raise this issue in his first federal habeas petition; that petition was denied by the Fourth Circuit Court, leading to Green’s new appeal.

Justice Stevens’ dissent complained that the state of Virginia planned to execute Green before the Court had a full opportunity to review his legal claims.  As he has before, Stevens argued that the Court should follow the regular practice of staying all executions that are scheduled before the Court had time to review the denial of a first habeas petition.

Green’s stay application was 07A913.   In denying that application and the petition for certiorari, the Court provided no explanation.  Green’s stay request was filed with Chief Justice John G. Roberts, Jr., Circuit Justice for the Circuit that includes Virginia.  Roberts referred the matter to the full Court.

Green’s execution was scheduled for 9 p.m. Tuesday.

 The next scheduled execution is in Texas, where Derrick Sonnier is to die next Tuesday, followed by Curtis Osborne in Georgia on Wednesday. At present, eight executions, including Sonnier’s and Osborne’s, are due in June — three in Texas, two in Virginia, and one each in Georgia, South Carolina and Oklahoma.

The state of Virginia, arguing that its lethal injection protocol for executions is “virtually identical” to a method upheld by the Supreme Court last month, has urged a federal appeals court to reject a constitutional challenge to the planned execution of Christopher Scott Emmett.  The state’s brief, filed last Friday in the Circuit Court but just now available, can be downloaded here.  A post on this blog discussing a new brief filed Friday by Emmett’s defense lawyers can be read here.

Emmett’s counsel has urged the Fourth Circuit to send the case back to a federal District Court judge to explore fully a variety of differences that the lawyers said exist between Virginia’s three-drug procedure and the Kentucky protocol the Supreme Court upheld on April 16 in Baze v. Rees.

But the state, in its brief, argued that the federal judge in Emmett’s case anticipated the Supreme Court’s approach in Baze, applied the same constitutional standards, and upheld Virginia’s method.  Thus, the state suggested, the Circuit Court need only affirm the District Court’s ruling as is.

Because the Emmett case appears to be the first one in which both sides in a capital case were instructed to analyze how the Baze ruling would apply in other states, the Fourth Circuit’s reaction may start a pattern toward greater — or lesser — review of other states’ protocols.

The state brief stressed in particular the part of the main opinion by the Justices in the Baze case that indicated how difficult it would be for inmates in other states to get delays of their executions based on new challenges to the lethal injection method.

The main opinion also laid down a standard for judging that protocol in Kentucky and elsewhere: whether the method, as specifically applied in a given set of circumstances, would pose “a substantial risk of serious harm” to the inmate before he died.  In Emmett’s case, the state said, the federal judge used that same standard, and concluded that the evidence “demonstrated that the risk of pain to Emmett was ‘less than 3/100 of one percent (.03%), a risk that is not constitutionally significant.’ ”

Moreover, the state added, the judge found that ” ‘the record fails to demonstrate that the execution team’s experience, training and expertise are less than adequate to address any complications that may arise during the course of the lethal injection procedure.’ ”

Answering a complaint by Emmett’s lawyers that Virginia’s method involves the use of too little a dosage of a drug to produce genuine unconsciousness before lethal drugs are injected, the state said its dosage was more than adequate.

It also suggested that, since there is no real risk that Virginia death-row inmates would suffer any substantial risk of harm, the courts need not explore any alternative to the three-drug method. Emmett’s lawyers have suggested that the courts explore a massive dose of a single drug — the barbiturate used to put the inmate to sleep before lethal drugs are injected — as an alternative.

The District Court, the state countered, has already concluded that there is no need to look at any different technique.

The Circuit Court has scheduled a hearing for May 14 on the impact of the Baze decision on Virginia’s protocol in Emmett’s case.

In a case that may provide the first full exploration of how the Supreme Court’s April 16 ruling on the lethal drug execution method could affect other states’ protocols, lawyers for a Virginia inmate on Friday asked a federal appeals court to allow review of a possible one-drug approach in place of the three drugs commonly used now.

The Fourth Circuit Court in Richmond, VA, is exploring the case of Emmett v. Johnson (docket 07-18) in the wake of the Supreme Court’s ruling last month in Baze v. Rees (Supreme Court docket 07-5439) upholding Kentucky’s three-drug lethal injection protocol.  Both sides’ briefs on the impact of the Baze ruling on Virginia were due Friday; Emmett’s brief can be downloaded here; the blog is awaiting the state’s brief from counsel.  The Circuit Court has scheduled a hearing for Wednesday, May 14.

Under the three-drug method, the first drug is designed to anesthetize the inmate, the second to paralyze him, and the final drug to stop the heart and bring on death. That is the general approach used by all but one of the states that still have the death penalty.

In the Baze case, one alternative put before the Supreme Court was the use of only the first drug — thiopental — but in a significantly larger dose. It is suggested that such a massive dose of a barbiturate, if allowed to work for five minutes or longer, will cause death.

The Supreme Court said in Baze that it would not rule on the adequacy of that approach, because it had not been proposed to and reviewed by Kentucky courts. Emmett’s counsel did not ask the Fourth Circuit to approve that alternative, but rather to send that issue, along with the entire case, back to a U.S. District Court to probe more fully all of the facts surrounding the three-drug protocol specifically as used in Virginia.

As they had earlier, Emmett’s lawyers told the Circuit Court that Virginia’s specific method carries a greater risk of causing substantial pain to the death-row inmate than the Kentucky method upheld in Baze.  In addition, the new brief recounted a series of claimed flaws in the specific mode of carrying out death sentences in Virginia.  Unlike Kentucky, which has used its method of lethal drugs in only a single execution. Virginia’s has been used in 70, the brief said, and the history of those executions “reveals evidence of maladministration that the Baze Court…did not have before it.”

The brief argued that the evidence shows that members of the state’s execution team “have performed incompetently,” including a lack of understanding of how the drugs work, mistakes in inserting IV needles to deliver the drugs, team members’ inability to properly observe the inmate during the process, a lack of more dosage of thiopental if IV failure occurs, and a ban on all spoken communications among the team members as the process goes forward.

One day after the Fourth Circuit holds its hearing in the case on May 14, the Supreme Court at a regular Conference will consider a plea by the state of Virginia for the Justices to lift a stay of execution they had issued last October so that Virginia could go ahead and schedule a new execute date for Emmett.

There has not been an execution in the U.S. since last September, when the Court agreed to hear the Baze case.  The Court has yet to clear the way for any execution it had blocked. It appears, though, that the first execution since Baze was decided will occur — unless newly stayed by some court — next Tuesday in Georgia, where Earl Lynd is to be executed by lethal drugs.

UPDATE Tuesday 12:05 p.m.

The Supreme Court will consider this motion and the response at its Conference on Thursday, May 15, according to the Court’s electronic docket.

———————–

 Lawyers for Virginia death-row inmate Christopher Scott Emmett told the Supreme Court on Tuesday that the state follows a “unique and uniquely dangerous” method of execution by lethal injection.  In opposing a request by the state for the Court to lift an order blocking Emmett’s execution, the inmate’s lawyers called the Virginia protocol
“far more dangerous” than the Kentucky version the Supreme Court upheld in Baze v. Rees (07-5439) on April 16.  The opposition to the state’s motion can be found here.  (The case is docketed as 07A304, Emmett v. Johnson.)

The state filed its request five days ago.  A post discussing that motion can be read here. The state argued that the Supreme Court stay should be lifted, so that Virginia could go ahead and set an execution date for Emmett for the murder of a co-worker in Danville, Va., in 2001. Emmett should have to ask lower courts for any further stay, the state contended.

In response, Emmett’s counsel said the Fourth Circuit Court was moving rapidly to consider his challenge to the state’s execution method, with new briefs on the impact of the Baze decision due on Friday of this week and a hearing set for May 14.

“Virginia now seeks to cut off review of Emmett’s claims just as the Fourth Circuit prepares to consider them,” the opposition brief asserted.  Virginia will suffer no harm if the Supreme Court’s stay remains in place, the brief added.

On the merits of Virginia’s lethal injection protocol, Emmett’s counsel cited what they said were two facets that indicate that procedure may fail the constitutional standard the Supreme Court spelled out in the Baze rulinig: a lethal drug procedure may not pose “a substantial risk of serious harm” to the inmate.

First, the brief conended, when an inmate in Virginia takes longer than expected to die, prison officials inject more of the second and third drugs in the three-drug sequence (the drugs that paralyze the individual and then cause the heart to stop), but do not inject more of the first drug (the one that causes unconsciousness).  The injection of more of these other drugs “happens routinely” in the state, the brief said, citing its occurrence in ten executions.

Second, the brief said, the Virginia procedure involves injection of the second and third drugs “within a minute” after the first drug is administered — an insufficient time to assure that the inmate is completely unconscious.

The challenges to these two defects, the brief contended, should be allowed to go forward without Emmett and his counsel having to pursue a new stay in lower courts after an execution date has been set.

In an early test of the Supreme Court’s willingness to let a number of states begin setting execution dates for death-row inmates, after an informal moratorium, Virginia officials on Wednesday asked permission to go forward with plans to use the lethal injection method in the case of Christopher Scott Emmett.  The state’s motion to vacate an existing stay can be found here.

Since the Court on April 16 ruled in a Kentucky case, Baze v. Rees (07-5439), that the lethal injection method is not unconstitutional at least as used in that state, it has not acted on any formal plea by a state for a chance to resume executions although it has denied review of inmate appeals from seven states.  A number of states have begun setting new execution dates in pending cases.

Emmett’s execution has been blocked by a Supreme Court order issued last Oct. 17, at a time when the Court was staying scheduled executions while it considered the Baze case. Emmett was sentenced to death in 2001 for murdering a co-worker in Danville, Va., and then robbing the victim of $100.

 Virginia’s attorney general argued that the Court’s stay should now be lifted, and any further delay should be considered, if at all, only by lower courts.  The Fourth Circuit Court has not ruled finally on Emmett’s latest challenge to Virginia’s execution procedure.  In fact, the Circuit Court last week  asked both sides to file new briefs by May 2 on the impact of the ruling by the Justices in Baze. A hearing in the Circuit Court is now set for May 14 in Richmond, VA (Emmett v Johnson, Circuit docket 07-18).

When the Justices imposed the stay in October, they did so “pending final disposition of the appeal” by the Circuit Court, or until “further order” of the Supreme Court. At the time, Emmett was asking the Supreme Court to bypass the Circuit Court so he could have his case reviewed directly by the Justices.

The new motion by the state noted that the Supreme Court, in Baze, had laid down strict new limits on when stays would be granted in any state using a lethal injection protocol.  “At the very least,” the state contended, “the Fourth Circuit should be required to make this determination, especially in a case from Virginia which employs lethal injection procedures virtually identical to those of Kentucky.”

While the Justices’ stay remains in effect, the state said, it “is unable even to set an execution date” that would then permit the Fourth Circuit to consider any stay request Emmett’s counsel then made.  “It therefore is essential that this Court vacate Emmett’s ‘Baze‘ stay,” the state argued.

Its motion was filed with Chief Justice John G. Roberts, Jr., who is Circuit Justice for the Fourth Circuit. He has the option of acting alone or of sharing the issue with his colleagues.  Emmett’s defense lawyer is expected to file shortly a response to the stay motion.

Analysis

The Supreme Court, without a specific explanation of why it was doing so, chose a single path on Monday in dealing with the first group of death penalty cases to be considered since its ruling in Baze v. Rees (07-5439) on April 16, upholding execution by lethal drugs.  Although the 11 cases acted upon Monday came in several forms and arose at different stages, the Court issued brief orders refusing to hear 10 of them (and refusing to rehear an eleventh, previously denied).

Lawyers for one of the death-row inmates, Earl Wesley Berry of Mississippi, had filed a supplemental brief on April 17 — the day before his case was before the Justices in Conference — and the brief apparently was distributed to the Court the same day. The new brief had argued that Mississippi lethal-injection procedure was quite different from the Kentucky procedure upheld in Baze.  So, his lawyers urged the Court to at least return the case to the Fifth Circuit Court to consider that difference.  The Court’s order denying his petition — and thus automatically vacating a stay of execution that had been issued Oct. 30 — made no mention of the new brief.

The Court also denied review — and thus lifted earlier stays of execution — for Thomas D. Arthur of Alabama and Carlton A. Turner of Texas.  The other eight cases involved inmates for whom no execution date had been set.

Of the 11 cases turned aside Monday, five were challenges to state Supreme Court rulings against the inmates, and six were challenges to federal appeals court rulings, thus reflecting the array of forums in which the lethal injection mode of execution were variously challenged.

 Ohio inmates had brought cases to the Court, among this list, challenging rulings by both the state Supreme Court there and by the Sixth Circuit Court.  Two of the three Georgia cases disposed of were from the state Supreme Court, and one from the Eleventh Circuit Court.

The Court still has pending on its docket three other cases in which the Justices had postponed scheduled executions.  There is no reason to expect that the outcome will be any different than it was on Monday for Arthur, Berry or Turner.

The simple denials of review like those in the first group Monday will have the effect of making final the lower court decisions that were being tested.  This will create some difficulty for defense lawyers hoping to find ways to make new challenges to executions by lethal drugs.  Some inmates will be bound by the judgments of the courts against them, others will have used up their option of filing a post-conviction challenge (either by habeas or through a civil rights claim), so there could be significant procedural hurdles in the way of new claims.

Justice John Paul Stevens, who announced in Baze that he now believed the death penalty was unconstitutional, actually joined in all of the denials of review on Monday.  In two of the cases, while noting that he agreed with the denial, Stevens wrote to caution that this action should not be interpreted as a ruling on the merits of any of the cases.

It is apparent, though, that Stevens will not follow the path that two former Justices did after deciding for themselves that the death penalty was unconstitutional — dissenting in every case where a challenge was rejected. That was the position Justices William J. Brennan, Jr., and Thurgood Marshall routinely followed.  Stevens has indicated he feels bound by the Court’s precedents — whether or not he now believes that any or them was wrongly decided.