Stevens's Ratchet: When the Court Should Decide Not to Decide

Hidden underneath the racy death penalty issues in Kansas v. Marsh lurks a seemingly dull procedural issue addressed only in separate opinions by Justices Stevens and Scalia: whether the Court should have heard the case in the first place. As he did in three cases from the Court’s 2005 term, Justice Stevens argued in Marsh that the Court has no legitimate interest in reviewing state court decisions that overprotect federal constitutional rights. Instead, the Supreme Court should exercise its certiorari power to tip the scales against states and in favor of individuals. Granting certiorari in Marsh, Stevens argued, was not motivated by a desire to create uniformity in interpretation of federal law, but was motivated by “[n]othing more than an interest in facilitating the imposition of the death penalty.” Justice Scalia vehemently disagreed, writing that Stevens’s argument rested on a “misguided view of federalism” and ignored the need for integ-rity and uniformity of federal law. He believes that would create a “crazy quilt,” in which each state could interpret the federal Constitution as it saw fit so long each such interpretation gave individuals more protection than necessary.