Do the Justices Opinions Count?
Justice Stevens admits that he and his colleagues in the majority have brought “our own judgment to bear” on the Eighth Amendment issue, above and beyond all the facts and figures from the broader society. Scalia sharply criticizes this reliance on the “personal views” of the Justices. In general, we share Justice Scalia’s concern that Justices too often read their own personal views into the Constitution, and then impose those views on the rest of us. But unlike so many issues it confronts-When does human life begin, and how might government regulate abortion? What searches and seizures are reasonable? Are vouchers permissible?-the issue of punishment is one that affects judges in a distinctly personal way, and one in which they may plausibly claim distinctive expertise. The Eighth Amendment is directly written to and about judges. Historically, it grew out of a concern that professional judges could at times be cruel and hardhearted-and lawless, too-in inflicting suffering on fellow
