The application to vacate the stay of execution of sentence of death entered by the United States District Court for the Eastern District of Washington on November 25, 2008, presented to Justice Kennedy and by him referred to the Court, is granted.
Justice Stevens (with Ginsburg) took a rare opportunity to specially concur with this stay, which was (per usual) done without an opinion. He made it clear that he agreed with ruling on the procedural ground that the federal district judge wrongly gave Stenson a second bite at the apple, after the state court refused his challenge to the lethal injection protocol in practice. To wit:
The state court decided under state law that the execution could proceed while respondent’s constitutional claim was pending. Accordingly, the District Court should not have entered a stay to give the state court additional time it decided was not warranted. In light of that procedural error, and on that basis alone, I vote to grant the application to vacate the stay of execution entered by the District Court.
This is given added bite with the reminder that when the lethal injection issue was decided by the Court last term, Stevens made clear his objection (on constitutional grounds) with the death penalty itself. No matter, he concurred (unlike Ginsburg, who held the particular procedure used there was unconstitutional) with the Court because Stevens thought precedent did not hold that the lethal injection protocol being decided upon was unconstitutional itself.
Stevens has for some time -- back to the early 1980s at least -- fought with what he deemed the Court's illegitimate "judicial activism" (in his view), and here targeted what he thought was a wrongful act of a lower court. He is supportive of a strong judiciary, legitimate "activism" shall we say, but shows that it really is a question of degree.
Anyway, this opinion suggests judging is not just about raw results, but yes, about the necessities of applying the law as given.* And, "judicial activism" is by itself a meaningless term, since judges are active all the time. It is how they are that counts.
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* C-SPAN broadcast a Q&A with Stevens and a fellow federal judge last weekend. In response to one question, Stevens talked about the important Chevron case, which in general counseled courts to give administrative agencies the benefit of the doubt. He noted that -- on policy grounds -- a majority of the Court probably would have decided the case the other way. But, applying the law, they was guided by other things.