The Supreme Court’s overturning of the death sentence in Smith v. Texas is an apt example of how activist judges subvert popular will (see my previous post on this subject). The point here is not that the majority opinion is incorrect on the merits, although it is for the reasons ably stated by the four dissenters. The point is to illustrate how, little by little, and under the pretense of restraint, major issues of public policy are being decided by the courts instead of by the elected branches.

No fair reading of the record in Smith v. Texas leaves any doubt that the defendant committed the crime. Nor does it leave doubt that the jury had a reasonable opportunity to assess supposedly mitigating factors from the killer’s childhood. (I shall defer for the moment the question whether alleged instances of abuse that happened decades in the past, if at all, can mitigate responsibility for a calculated murder of the kind at issue in Smith). Nonetheless, the Court reversed a death sentence provided for by Texas law — a sentence that had twice been imposed by unanimous juries. It did this on the stated theory that the particular language of the mitigation instruction might have been insufficient to alert the jury to its prerogative to impose a sentence of less than death.

That at least is what the majority opinion purports to do. What it actually does is take yet another step toward abolishing the death penalty wholesale. It does this, not by stating forthrightly that this is the object of the game, but by adopting another finespun procedural hurdle that, while leaving the death penalty on the books, helps to make it impossible to actually execute anyone.

This method of attacking the death penalty features a dishonesty borne of necessity. The dishonesty is obvious — it’s hardly honest to represent to our citizens that “we do too have a death penalty” knowing that, as a practical matter, it can never be carried out. The necessity of this tactic is only slightly less obvious. The reason that liberal courts (and death penalty “moratorium” supporters like the ACLU and the ABA) are reluctant to announce the real agenda is that the real agenda cannot be sold to the public.

The public’s view of the death penalty is not in doubt. According to the most recent comprehensive Gallup poll on the subject (conducted a year ago), 65% support capital punishment, while only 28% oppose it. Notwithstanding the fact that 63% believe an innocent person has been put to death within the last five years, 60% believe the death penalty is applied fairly. Fully 64% believe that it deters murder. And while 21% believe it is imposed too often, 25% say it is imposed with about the right frequency, and 51% — a majority — say it is not imposed enough.

Accordingly, it’s no wonder that liberals and their allies on the courts soft-peddle their goal of outright abolition, and prefer the far shrewder strategy of stealth abolition. The public is less likely to become alarmed, or moved to action, when the abolitionist agenda can operate in obscurity, chip-chip-chipping away a bit at a time, as in Smith v. Texas.

The liberal, activist judges of the late 1960’s and 1970’s learned that being too obvious may feel good, but has its downsides (e.g., the election of Richard Nixon and his appointing to the Court Justices Lewis Powell and William Rehnquist). They are wiser now, and more clever. Unfortunately for the rest of us, this makes them, not the least dangerous branch, but more dangerous than ever.