At Volokh Conspiracy, Orin Kerr takes a shot at answering a question raised by lawprof Michael Dorf.  Ever notice how a Supreme Court justice who takes the bench with an antipathy toward the death penalty never seems to develop a taste for executions over time?  And yet, sometimes justices who start with the view that the death penalty is part of the process end up deciding that they can’t take it any more, that the death penalty is wrong and unconstitutional?  What’s up with that?

Why would so many Justices change their minds, only after serving on the Court for decades, about this one issue?

I have a theory on that.  It’s pure speculation, to be clear. But while we’re speculating, here’s my guess: It’s the cumulative effect of the workload.

In the interest of brevity, this is the crux of Orin’s speculation:

A little too superficial? Fair enough. Here’s the longer version:

Think about how the death penalty operates from the perspective of a Supreme Court Justice. The Justices see most capital cases multiple times. First, they see cases on direct review after conviction. Then at the habeas stage. Then over second habeas petitions. Then over claims that the condemned is not sane enough or intelligent enough to be executed. Then over claims that the method of execution is not permitted. Then over whatever new claim the capital defense bar has come up with recently. And in almost every planned execution in the U.S. — around one a week — there will be a last-minute appeal to the Justices to stop the execution sometimes filed just hours before it happens.

The cases are gruesome. . . . Instead, every case involves a murder. And often the facts are shocking or brutal.

It’s quite an interesting humanist approach to the court, that the justices “wear out” on the unpleasantness of death penalty cases until they just can’t take any more.  Since Orin’s playing the pure speculation game, I will too.

Part of the build-up his conclusion involves recognition that the justices, unlike the rest of us, are required to confront pretty much every death case in the country, usually over and over, so that they are inundated with work related to executions. They face it far more than anyone else, creating the sense that it’s happening constantly, pervasively.  The justices get a distorted impression of executions by being required to face them when the rest of us can pick and choose, turn away when it becomes too much to handle. They don’t have that option.

So, Orin speculates that having to confront too many gruesome murders pushes justices to burn out on them, and finally say, “enough.”  His point on the distorted vision of justices forced to oversee executions is well taken, but his takeaway, that they grow exhausted by the miserable work seems far too delicate an explanation.  Sure, it’s unpleasant, but almost all of criminal law is miserable.

Orin’s explanation smacks of the feelz, that the justices are just exhausted with these nasty, gruesome cases, and just can’t take any more of them.  I give them more credit than that, that their late-career-conversions are grounded in a more rational basis than they’re sick and tired of death cases.

Rather, I speculate that over time, a period of decades, justices have come to see that the evil killers, the worst of the worst as advocates prefer to call them in order to dehumanize them, as people. They come to learn about how nice little boys grow up to be killers. They come to understand how intellectually challenged people suffer along the path to maturity, turning them from Rain Man to Pain Man.

When a case comes before you enough times, when the individual ceases to be called “the defendant” or “the murderer” and instead is called Joe or Sam, he becomes a person again.  It’s easy to execute the defendant. It’s harder to execute Joe.

Then there are the cases that come before the court where the prosecution argues with vehemence and passion about how evil, how murderous, the defendant is, and why the only punishment for someone to horribly evil is death. And this is pounded in, over and over, as if there could be no question, no doubt whatsoever, that the defendant deserves to die for his heinousness, and how there is no salvation for him whatsoever.

Until, one day, after hearing the litany of horrors about the defendant, it turns out he didn’t do it. He’s innocent. Oops. Never mind. Remember what we said, over and over, about how absolutely certain it was that he needed killing? We were wrong. Sorry to waste your time, justices.

It won’t happen again.  But of course, it does.

So are the late-converters sick and tired?  Well, yeah, but not of the personal emotional burden of considering death penalty cases, but of the dehumanization of defendants in the process of hearing the arguments for death. And of the hyped certainty, only to learn one day that they were inches away from putting their stamp of approval on the execution of another innocent person.

These things could well exhaust a person, but they aren’t grounded in justices not being tough enough to do their job, giving way to their feelz rather than appreciating the burden they’ve assumed as part of the Chosen Nine. Rather, their suffering the inundation of death penalty cases makes them far more acutely aware than anyone else of the frailties of the system, of the humanity of even the most notorious defendant.

But they remain callous when it comes to others, who may be just as innocent but don’t get the level of concern lavished on those sentence to death?  This too is a reflection of their understanding of the job, that they are called upon to make hard choices, which seems to inure them to that likely damage that flows from their choices.  So why is there a late-career-conversion when it comes to executions but not so much when it comes to criminal cases otherwise?

Because death is different.