To Dissent or To Enable, That Is the Question

A bit of blog context.

About 15 months ago, I wrote about the Honorable A.J. Wagner, Judge of the Court of Common Pleas of Montgomery County (Dayton), Ohio.  He'd been on the common pleas bench for 10 years, but just found himself with his first capital case.  And he took himself off of it.  

As he explained in his Request for Recusal, he believed (whatever the higher courts might think) that the death penalty was unconstitutional.  More important to his request, he believed it was morally wrong.

I have given life sentences in the past and would not hesitate, given the proper circumstance, to impose life without parole. Death, however, is different.
The Ohio Code of Judicial Conduct Rule 2.11 (C) states that a judge "may disclose on the record the basis of the judge's disqualification." Thus, below I give my reasoning for recusal. Although it boils down to my refusal to order the killing of a human being based in my belief that life is sacred, I believe a broader explanation is in order. This explanation is in two parts.
The first is an explanation as to why, in my opinion, the death penalty is unconstitutional. This is not a ruling, but a list of the injustices that I cannot ignore because they result in the State putting someone to death. These same arguments would not necessarily apply to a life sentence for which I would not see the need to recuse myself.
The second explanation covers my spiritual reasoning for recusal. In every trial I advise prospective jurors, "The Court will instruct you concerning the law as it applies in this case and it will be your sworn duty to follow that law as instructed; is there anyone, perhaps for religious or personal reasons, that cannot accept the law as it will be explained to you by the Court and apply it to the facts in this case and ultimately reach a verdict solely upon such facts and exhibits that are admitted into evidence?" The judge is likewise sworn to uphold the law and when she or he cannot do so for any reason, the judge must disqualify herself or himself.

Since he couldn't follow Ohio law if the law required a death sentence (I don't believe it ever does in practice though it can in theory; prosecutors disagree, but that's a different question), he determined to recuse himself.

In that post, I drew a contrast between Judge Wagner and an appellate judge who I knew to be opposed to the death penalty but took a different approach.  As he explained to me once when we were talking about it over cocktails (this is a paraphrase)

You have to be willing to affirm so that you can be there to reverse when that's appropriate.

It's different when you sit on the Supreme Court of the United States.  You're not constrained by precedent about what the Constitution does or doesn't allow.  You get to decide, and if in dissent, so be it.  In time, maybe your view will become the majority.  And while it's surely true that if you can't set aside your religious beliefs and rule strictly on the law you ought not sit on a case, it's equally true that you can, and maybe must, rule on the law as you believe proper.

So it is that in case after case, for years, Justices Brennan and Marshall would dissent from denials of stay in capital cases one or the other writing

Adhering to my view that the death penalty is in all circumstances cruel and unusual punishment prohibited by the  Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U. S. 153, 227 (1976) (BRENNAN, J., dissenting), I would grant the application and stay the execution of applicant [whoever].

Sometimes they'd add to that.  Other times not.

Near the end of their days on the Court, Justices Blackmun and Stevens had concluded that the death penalty was unconstitutional.  Blackmun, in the little time he had left, opposed every death sentence and execution.  Stevens declared his position in Baze v. Rees, in a concurring opinion finding that Kentucky's lethal injection protocol was not, on the record before the Court, unconstitutional.  He, unlike Blackmun then (see here), and at least in Baze, continued to 

tinker with the machinery of death.

And now we come to Ruth Bader Ginsburg.  You know, the 78-year-old, twice survivor of cancer, Supreme Court Justice.  The one who on Wednesday had to take the emergency evacuation slide to get off a plane at Dulles on her way to speak to law students at the Hastings College of Law in San Francisco.*

As reported by Bob Egelko of the San Francisco Chronicle, she had important things to say about equality for gays and lesbians (and as I assume would follow, bisexual and transgender people).

We should not be stopped from pursuing whatever talent God has given us simply because we are of a certain race, a certain religion, a certain national origin, a certain gender or gender preference

She talked about the importance of standing up for liberty in the face of false claims of security.

"If we allow security concerns to so overwhelm our deep attachment to fundamental values, to the dignity of each person," Ginsburg told the students, "we will come more and more to look like our enemy."

And she said that what she'd like to achieve, in her last years on the Court, is. Wait for it.

I would probably go back to the day when the Supreme Court said the death penalty could not be administered with an even hand.

And so we have Ruth Bader Ginsburg, abolitionist. But with a caveat.

Ginsburg described review of impending executions as "a dreadful part of the business," and said she has chosen not to follow the path of the late Justices Thurgood Marshall and William Brennan - who declared in every capital case that they considered the death penalty unconstitutional - so that she could maintain a voice in the debate.

I wondered, back when I wrote about Judge Wagner, whether the abolitionist who would be willing nevertheless to vote for a death sentence was an enabler of the killing state.  I wonder that still.  But Wagner is a trial judge, bound to follow the law as he understands it.

Ginsburg sits on the Supreme Court and can, within the bounds of doing what she believes the law permits or requires, do as she pleases.  Of course, she knows that she can't end the death penalty in this country.  She doesn't have the votes and, as she acknowledged, isn't likely to.

[T]hat's not likely to be an opportunity for me.

But does she have more of a voice by voting to allow an execution now and again rather than voting to stop every one?  She could, after all, while dissenting from every killing, do as the other abolitionist judges and in appropriate cases offer additional explanation of why this particular killing ought to be stopped even if the death penalty itself were constitutional.

I understand the desire to explain at length and to engage in debate.  (Hell, if you've read this far you already know that.)  But consistent dissent, refusing to be an enabler, that's something else.

And really, as her good buddy Antonin Scalia could tell her over a glass of port after an evening attending a performance of La Traviata.

Dissent is not silence.

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*"I had not planned that as part of my journey," she said.