by Kenneth W. Miller and David Niven. El Paso: LFB Scholarly Publishing, 2009. 236pp. $39.95. Paper. ISBN: 9781593323400.

Reviewed by Christopher P. Banks, Department of Political Science, Kent State University. Email: cbanks6 [at]


Using judicial opinions and select off-the-bench commentary of three conservative justices, William H. Rehnquist, Antonin Scalia, and Clarence Thomas, the provocatively-titled DEATH JUSTICE passionately argues that U.S. Supreme Court death penalty jurisprudence is illogical and probably illegitimate, ostensibly because the legal arguments they make are inherently contradictory. The justices’ “forceful and vigorous arguments rest on a foundation of inconsistencies” (p. 4). Exposing the hypocrisy is clearly the book’s mission: accomplishing it allows Kenneth W. Miller and David Niven to uncover threats to the rule of law and judicial legitimacy caused by judicial opinions that are “ideological, secretive, and result-oriented” instead of being “principled, transparent, and consistent” (p.7).

DEATH JUSTICE builds its case by examining a fifteen-year period framed by Thomas’ nomination and Rehnquist’s death; although it is never fully established why this time period – or in fact why only the three justices under review – are the key to understanding the evolution of death penalty case law in the Rehnquist Court and afterwards. Miller and Niven thus presume and argue that both are influential in “set(ting) a foundation upon which contemporary death penalty justice is meted out” (p.13). After a brief introduction of conservative judicial philosophy (chapter 1) and a survey of capital punishment precedent (chapter 2), the authors’ central arguments are found in analyzing the contradictions and dynamics between the trio’s writings and the role public opinion, states’ rights, and juries play in the law’s development (chapters 3, 4 and 5). Chapters 6, 7 and 8 attempt to link the inconsistencies with judicial impact, arguing that their jurisprudence has negative legal, political, and cultural implications that will endure in the Roberts Court with the nascent Chief Justice and Samuel Alito appointments.

Chapter 3’s focus is ATKINS v. VIRGINIA (2002) and ROPER v. SIMMONS (2005): both represent a new direction for putting limits on capital punishment. While the cases were mostly split along ideological lines in banning executions against mentally retarded and juvenile defendants, DEATH JUSTICE uses them to illustrate the incongruity of the conservative justices taking positions that fail to incorporate accurately public sentiments that oppose their constitutional reasoning. Instead, the justices wrongly rely upon unreliable and unrepresentative legislative or jury determinations as meaningful objective factors that weigh in favor of the death penalty; [*661] whereas, a different approach, one accepting the reliability of polling data traditionally used by social scientists, more persuasively taps into what the public is thinking about the death penalty and its manifestations. For Miller and Niven, these inconsistencies are undemocratic and politically-driven (pp.59-60); and they violate the Court’s longstanding endorsement of WEEMS v. UNITED STATES (1910) and TROP v. DULLES (1958) precedents, which collectively stand for the notion of a living Constitution’s principle that the Eighth Amendment’s meaning is derived from proportionality review and “evolving standards of decency.”

The next two chapters assert Rehnquist, Scalia, and Thomas generate irrational death penalty opinions that are irreconcilable with states’ rights positions conservatives take in federalism cases (chapter 4); and their legal arguments inexplicably expand the jury’s role in Sixth Amendment trial by jury cases while reducing the sentencing discretion of judges (chapter 5). Practicing a type of “convenient federalism” (p.66) that supports death rulings in the states, Miller and Niven cite BUSH v. GORE (2000)[election law], RAV v. CITY OF ST. PAUL (1992)[hate speech], CITY OF RICHMOND v. J. A. CROSON CO. (1989)[affirmative action], and a few preemption/consumer rights cases, as proof that the justices opportunistically achieve their conservative preferences by accepting federal intervention at the expense of states’ rights: such result-oriented jurisprudence usually favors business interests over minority rights. Likewise, as epitomized by RING v. ARIZONA (2002), a ruling limiting judicial power to determine key sentencing facts in capital cases, DEATH JUSTICE argues that Rehnquist, Scalia, and Thomas improperly expand the jury’s fact-finding role in capital sentencing even though academic studies consistently prove that unrepresentative juries cannot understand or apply death penalty law well. This is contradictory because “the right to a jury has been enhanced without concern for the government’s obligations necessary to animate that right” (p.146). Restated, their jurisprudence is contrary to the recognition that juries are incompetent in trying to comprehend jury instructions, applying mitigating evidence, or appreciating that there are different sentencing options.

DEATH JUSTICE shifts its attention to judicial impact and possible reform in chapters 6 through 8. Chapter 6 utilizes HERRERA v. COLLINS (1992)[capital case] and HARMELIN v. MICHIGAN (1991)[non-capital case] in conjunction with citation-count analysis (of those cases and what they stand for) to suggest that Rehnquist, Scalia, and Thomas’ views are adversely affecting federal and state courts precedents: they wrongly value procedural efficacy instead of fairness or factual certainty in death penalty habeas corpus appeals, even though they often raise actual innocence claims based on newly-discovered evidence. The same indifference towards entertaining habeas pleas of innocence makes the conservative alternatives to habeas, which are to comply (mechanically) with governing procedural appellate rules or to seek executive clemency outside of the courts, impossible to achieve. Not surprisingly, defendant pleas of actual innocence, or those to review Sixth Amendment habeas claims of ineffective [*662] assistance of counsel, likewise fall on deaf ears and create injustice because they receive little sympathy from the conservative justices. Indeed, DEATH JUSTICE holds the justices responsible as the impetus for Congress to enact the 1996 Antiterrorism and Effective Death Penalty Act, legislation created in the aftermath of Oklahoma City and which sharply limits habeas review in capital cases. Their opinions, in other words, provided legislators with important legal precedent for supporting harsher and lengthier sentences without recourse to meaningful appeal (p.165).

Largely focusing on Scalia’s extra-legal activities as an influence on Rehnquist and Thomas, chapter 7 links the conservative antipathy towards capital defendants with a “moral code” (p.175) based on a dogmatic admixture of “strident aspects” of “Christian theology or traditional philosophical views on punishment” (p.175). Scalia’s moral code selectively ignores mercy or forgiveness, the current views of the Catholic Church or Pope (which have denounced capital punishment), and the harsh realities of prison confinement that often abuses inmate rights or dignity. DEATH JUSTICE suggests that basing conservative legal positions on religious references are specious attempts to gain judicial legitimacy (p.185); and, through an analysis of media coverage of the Court and justices, Miller and Niven contend that such an approach is probably out of sync with true citizen preferences that give less support for the death penalty than what is usually thought (p.193, 196).

DEATH JUSTICE’s last chapter examines public policy formation and implementation. After surveying the nature and scope of evolutionary and public opinion policy models, it concludes that Rehnquist, Scalia, and Thomas have helped create law and policy which falls outside of the normal parameters of either model. The lack of consistent legal standards explains the affirmation of a death policy that is not responsive to mounting evidence that death sentences are not a deterrent, racially applied, heavily influenced by economic strata, and probably out-of-step with citizen preferences favoring less severe punishments (p.205). All of the worst public policy effects, moreover, are likely to remain in place in the Roberts Court because of the appointments of Chief Justice Roberts and Justice Alito: they are just as conservative as Chief Justice Rehnquist and Justice O’Connor. In sum, DEATH JUSTICE equates the new appointments with continuing the conservative preference of allowing powerful elites to dictate death penalty policy at the expense of racial minorities who are targeted for death but powerless to change it. While said indirectly, “breaking the mold” (p.201) of existing death penalty policy will require the Supreme Court to replace its conservative members with those who will fit more comfortably in the operation of traditional public policy models, thereby enabling itself to come into line with academic studies and citizen preferences that uniformly illustrate the mistake of staying the conservative course.

DEATH JUSTICE’s great strength, and surely its weakness, rests with its careful and thorough recitation of death penalty law that is shaped through the conservative prism of Rehnquist, Scalia, and Thomas. Legal scholars especially [*663] will find it an important resource for orienting their understanding about many of the cutting-edge issues of capital punishment, ranging from the use (and abuse) of social science evidence, to federalism, and how juries handle death penalty cases. The discussion of the constraints juries face in applying death penalty law, along with the book’s timely reminder of the difficulty of squaring constitutional principles with claims of actual innocence and appellate review, are very insightful and fresh. In this regard Miller and Niven successfully expose the intuitive incongruities of establishing death penalty policies that probably are driven by ideological preferences across key areas of criminal justice policy. For this reason, the book is likely to be warmly received in law schools and other policy forums that wish to learn more about this complex area of the law and its political manifestations.

Yet DEATH JUSTICE’s draw may only extend to liberals in the academy and elsewhere who share the authors’ strident criticism of conservative judicial philosophy. By its tone and frequent use of polemical adjectives in the text, and with its selective use of capital punishment academic studies that only underscore the fallacies of the conservative position, DEATH JUSTICE ironically adopts the same sort of intolerant approach that it finds so offensive in the dogmatic writings and off-the-bench activities of the conservative trio of justices it analyzes. With DEATH JUSTICE, there is little effort to hide the authors’ ideological preferences. Likewise, there is no attempt to counter-balance the analysis with a recognition or defense of any conservative position in any way. Scholars who wish to explore at the least the possibility that there is a consistent basis or rationale to conservative judicial philosophy in death penalty law will not find it in DEATH JUSTICE.

Additionally, the book may be disconcerting to scholars wishing to learn more about Justice Thomas’ positions. Most of DEATH JUSTICE concentrates on Rehnquist and Scalia: their writings and extralegal activities are extensively referenced and examined in comparison to Justice Thomas. As a result, apart from a few speeches and judicial opinions, Thomas’ influence seems to extend only to joining silently the legal opinions written by the others, leaving one to wonder why. As the authors observe (in the context of media coverage of the justices), one explanation may be that Thomas is a “drier subject” and there have not been as many Thomas-generated “public pronouncements on the death penalty” (p.187). Although there are some exceptions, DEATH JUSTICE does not often isolate Thomas’ writings and speeches for analysis to the degree that it does for Rehnquist and Scalia (who, many court watchers would probably agree, are certainly more exciting subjects, but that is besides the point). The relatively infrequent attention to Thomas’ contribution in this area of law begs, too, the question of why the research design does not include descriptive tables of all of the judicial opinions authored by Rehnquist, Scalia, and Thomas; and thereafter segregated by time, opinion type, death penalty issue area, outcomes, and Court voting blocs (including justices beyond the main three). At the very least, such data would probably strengthen the book’s argument that the justices often voted in [*664] a consistent bloc of three and, in the process, took other justices with them (or not) in voting their preferences over the fifteen-year period under review. More extended analysis could address how those votes or outcomes differed (or not) with other lines of death penalty precedent or voting behavior from justices in the Burger Court, or up to and through the point that Thomas joined the rest of his Rehnquist Court colleagues. In this sense, it would be fascinating to discover how regular any of the justices at issue were in formulating the inconsistencies that plague the legal landscape over time and now.

Furthermore, DEATH JUSTICE opts for the narrative approach of identifying specific quotations or legal principles to illustrate the inconsistencies and then link them intuitively to judicial influence. Although there is some attempt to use citation count analysis to establish linkages between ideology, public policy outcomes, and judicial impact, the book’s research design and its liberal bias may disappoint those who value empirical proof of the authors’ ideological claims. DEATH JUSTICE does not employ rigorous social science methodologies to bolster its analysis. In their absence, those who are so inclined are likely to dismiss the research as a liberal rant, which is probably the same thing conservatives will do in scoffing at the book’s merits. In this light, the omission of descriptive tables of justices’ positions, voting blocs, and death penalty outcomes by issue area in the manner suggested earlier may help deflect obvious questions about whether the three justices have as much influence as the authors claim. Moreover, the data could begin to justify why Miller and Niven choose to examine only the fifteen-year period they opt to study, or why only three justices have such an exceptional impact on the Court and country. Without such evidence, it is easy for critics to assert that DEATH JUSTICE overstates its liberal case by concluding that the analysis is only as good insofar as it ideologically goes.

ATKINS v. VIRGINIA, 536 U.S. 304 (2002).
BUSH v. GORE, 531 U.S. 98 (2000).
CITY OF RICHMOND v. J. A. CROSON CO., 488 U.S. 469 (1989).
HARMELIN v. MICHIGAN, 501 U.S. 957 (1991).
HERRERA v. COLLINS, 506 U.S. 390 (1992).
RAV v. CITY OF ST. PAUL, 505 U.S. 377 (1992).
RING v. ARIZONA, 536 U.S. 584 (2002).
ROPER v. SIMMONS, 543 U.S. 551 (2005).
TROP v. DULLES, 356 U.S. 86 (1958).
WEEMS v. UNITED STATES, 217 U.S. 349 (1910).

© Copyright 2009 by the author, Christopher P. Banks.