Abstract

In a lecture at the University of Chicago, U.S. Supreme Court Associate Justice Stephen Breyer highlighted that he has two jobs: the first job, he explained, is deciding what to decide, and the second job is then to decide what the Court has decided to decided. Many devote careers to analyzing and criticizing exactly how Supreme Court Justices perform their second job of deciding the cases the Court has decided to decide; far less attention has been devoted to analyzing and criticizing exactly how Supreme Court Justices perform their first job of deciding what to decide.This commentary directs attention (and criticism) toward the Justices' performance in their first job of deciding what to decide in the arena of criminal justice. This commentary contends the Supreme Court has recently done a poor job setting its own agenda and its failings have had a negative impact on state and federal legal systems. Specifically, the Supreme Court has become caught up in a "culture of death": the Court devotes extraordinarily too much of its scarce time and energy to reviewing death penalty cases and adjudicating the claims of death row defendants. As the title of the commentary is intended to suggest, this phenomenon a "capital waste" that results in various problems for the administration of both capital and non-capital sentencing systems.Beyond criticizing the Supreme Court's troublesome affinity for obsessing over capital cases, this commentary explores under-examined agenda-setting dynamics that shape the Court's engagement with legal issues and its work-product. In addition, as a final coda suggests, changes in Court personnel might prove to be as consequential with regard to how the Court sets its docket as with regard to how the Court resolves cases.