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Book Review: Kenneth W. Miller and David Niven Death Justice: Rehnquist, Scalia, Thomas, and the Contradictions of the Death Penalty El Paso, TX: LFB Scholarly, 2009. 236 pp, $39.95. ISBN 978-1-59332-340-0

This book is the latest in the long list of many books and articles on the subject of continued morbid application of the death penalty as a form of punishment in the United States. However, rather than the usual criticism against the use of the death penalty as a violation of the constitutional protection against cruel and unusual punishment, per se, the authors present another compelling argument concerning the sagacity of some of the conservative justices who preside in the nation’s court of last resort on death penalty cases. They ‘‘question the consistency, the underlying logic, of the death penalty decisions of three of the greatest allies: the late Chief Justice William Rehnquist, Justice Antonin Scalia, and Justice Clarence Thomas’’ (p. 4). The authors argue that these justices have ‘‘collectively and forcefully defended the sentences of death both in theory and in practice’’ (p. 4). However, it is not so much about the ‘‘vigor of their assertions on the subject’’ (death penalty) that troubles the authors, than the fact that these premises ‘‘rest on a foundation of inconsistencies’’ (p. 4). The authors articulate their argument in eight chapters by presenting a critical laundry list of flagrant indulgence in judicial oxymoronism in the name of justice by the so-called conservative justices of the court. In Chapter 1, the authors discuss ‘‘the value of consistency’’ where they indicate that the three conservative justices—Rehnquist, Scalia, and Thomas—often esteem themselves to be the most consistent members of the court. ‘‘Consistency has a special role to play in judge-made-law,’’ wrote Scalia in Morgan v. Illinois [504 U.S. 719 (1992)], in which he referenced Ralph Waldo Emerson’s line to state that ‘‘A foolish consistency is the hobgoblin of little minds’’ (p. 5). Thomas indicated that ‘‘only in consistency can the Court achieve standards that can be understood. . . . Indeed, I tell my clerks that our opinions must be easily explained to any gas station attendant’’ (p. 6). Notwithstanding the presumption of ignorance for gas station attendants, some of whom are immigrants with college degrees, it is demonstrated in this book that most death penalty jurors have a problem understanding judges’ instructions after trial. On the issue of ‘‘judicial review and legitimacy,’’ the authors indicate that the three conservative justices believe that, ‘‘The primary significance of the Court’s standing is not that justices could lose a popularity contest, but that the Court’s place in our governmental system is to sit in judgment of the actions of others’’ (pp. 6-7). Therefore, ‘‘most contemporary theories of constitutional decisionmaking are based to a large extent on valuing consistency and principled predictability in constitutional adjudication’’ (p. 7). On originalism, Scalia, while addressing students at the University of Chicago Divinity School in 2002, touted the fact that, ‘‘I look at a text, I take my best shot at getting the fairest meaning of that text, and when it is a constitutional text, understanding what it meant at the time it was adopted. So, you know, I’m handcuffed. I can’t hurt you even if I wanted to’’ (p. 8). In fact, Scalia went on to state that, ‘‘having an evolving Constitution . . . means you don’t have a Constitution at all. It means, ultimately, you’re going to have a Constitution that means what the current society wants it to mean, Criminal Justice Review 367