After graduating Phi Beta Kappa from the University of Chicago in 1941, Stevens enlisted in the Navy on Dec. 6, 1941, hours before the Japanese attacked Pearl Harbor. He later won a bronze star for his service as a cryptographer, after he helped break the code that informed American officials that Adm. Isoroku Yamamoto, the commander of the Japanese Navy and architect of the Pearl Harbor attack, was about to travel to the front. Based on the code-breaking of Stevens and others, U.S. pilots, on Roosevelt’s orders, shot down Yamamoto’s plane in April 1943.
Stevens told me he was troubled by the fact that Yamamoto, a highly intelligent officer who had lived in the United States and become friends with American officers, was shot down with so little apparent deliberation or humanitarian consideration. The experience, he said, raised questions in his mind about the fairness of the death penalty. “I was on the desk, on watch, when I got word that they had shot down Yamamoto in the Solomon Islands, and I remember thinking: This is a particular individual they went out to intercept,” he said. “There is a very different notion when you’re thinking about killing an individual, as opposed to killing a soldier in the line of fire.” Stevens said that, partly as a result of his World War II experience, he has tried on the court to narrow the category of offenders who are eligible for the death penalty and to ensure that it is imposed fairly and accurately. He has been the most outspoken critic of the death penalty on the current court.
There is already published at the Volokh Conspiracy a thoughtful article on Stevens's bizarre reasoning. It's worth reading. I agree completely with Professor Volokh's analysis.
First of all, Stevens expresses the decidedly odd idea that there was something exceptional about killing the Admiral who was in charge of Japan's Pacific fleet. Japan was at war with the United States, and Yamamoto was directing a major effort in that war. At the time his Betty was shot down, he was engaged in actively supervising his troops, and boosting their morale. He was traveling in an armed squadron, and his subordinates on the ground warned him about the possibility of an attack. The destruction of his convoy was clearly an act of war.
The conditions of war are particular. In wartime, anyone simply wearing the enemy's uniform can justifiably be killed, and without warning. "Getting" Yamamoto was well within the ordinary limits enshrined in the Geneva Conventions.
The fact that an intellectual thinker such as a future Supreme Court Justice was troubled by the decision to kill the architect of Japan's dastardly attack on Pearl Harbor is simply bizarre.
More importantly, the military decision to kill an enemy during a war for the survival of the United States does not have anything to do with the judicial death penalty. To conflate the two situations illustrates a moral and philosophical confusion so severe as to call into question Stevens's sanity. Most Americans accept the necessity of capital punishment. Most American states, and the Federal government as well, apply the death penalty. For a confused and bewildered Justice to impose his peculiar and illogical notions on the Federal government and the states illustrates why activist judges are so dangerous, and why allowing a Dhimmicrat to reside in the White House would be a signal victory for the post-modernist cultural-relativist left.
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