Mandery & Shemtob: Supreme Convolution

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Supreme Convolution:What the Capital Cases Teach Us About

Supreme Court Decision-Making

EVANJ.MANDERYAND ZACHARY BARON SHEMTOB

ABSTRACT

Gregg v. Georgia, 428 U.S. 153 (1976), and its accompanying cases,shaped the modern death penalty. The authors interviewed more than fifty

lawyers, law clerks, and academics who were involved in the litigation anddecision of Gregg and its predecessor, Furman v. Georgia, 408 U.S. 238(1972). This research is the basis for Prof. Manderys book, A Wild Justice.We present it here as part of a discussion of judicial decision-making andas evidence of the limitations of conventional legal research. We argue thatonly a mixed jurisprudential model can explain the individual Justicesbehavior in Gregg. We further argue that conventional legal research, withits emphasis on published judicial opinions and consideration of theSupreme Court as a monolithic entity, is inherently conservative andunhelpful.

INTRODUCTION

regg v. Georgia1and its companion cases2shaped the modern deathpenalty. In the 1972 Furman v. Georgia decision,3the Supreme Courtstruck down Georgias death penalty on the basis that it did not

Professor and Chairperson, Department of Criminal Justice, John Jay College of Criminal

Justice; A.B., Harvard College (1989); J.D., Harvard Law School (1992). This Article was co-

written with authorship order determined by lottery. (Remarks delivered at New England Law

ReviewSymposium, A Look Back at the History of Capital Punishment,on March 24, 2014).

Ph.D., John Jay College of Criminal Justice (2011).1 428 U.S. 153 (1976).2 Proffitt v. Florida, 428 U.S. 242 (1976); Jurek v. Texas, 428 U.S. 262 (1976); Woodson v.

North Carolina, 428 U.S. 280 (1976); Roberts v. Louisiana, 428 U.S. 325 (1976).3 408 U.S. 238 (1972).

G


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guide jury discretion. Thirty-five states and the federal governmentresponded by passing new capital statutes, which curtailed arbitrarinesseither by creating jury standards or by making the death penalty

mandatory. In Gregg, the Court upheld these guided-discretion statutes. Onthe same day, in Woodson v. North Carolina, the Court overturned themandatory laws. The Court effectively held the death penaltyconstitutional so long as states endeavored to treat like defendants alikeand individual defendants individually. These twin principles continue togovern capital sentencing.

Despite their importance, Gregg and its companion cases have beenrarely studied. Where studied, the aim almost always was to criticize thesomewhat confusing legal principles these decisions generated. We treatGreggas a historical event, rather than a discrete legal holding. From 2008through 2011, the authors conducted interviews with more than fiftylawyers, academics, and law clerks involved in the litigation of the Furman

and Gregg cases.Generally, it is not possible to look behind the veil of the SupremeCourts decision-making process, but for several reasons the authorssucceeded here. These decisions are recent enough that many of their keyplayers are still alive, yet enough time has passed that many of theseindividuals were willing to discuss the cases. Furthermore, capitalpunishment is such an important issue that many of the participants inthese events perceived an obligation to history. Many of the Justicespapers are also available at the Library of Congress and various academicinstitutions. This history is presented in Evan Mandery s book, A WildJustice.4 We present some of the key findings here for the window theyoffer into how decisions are shaped on the Supreme Court and todemonstrate some of the limitations of conventional legal researchs almostexclusive reliance on published judicial opinions.

Understanding judicial decision-making is important for severalreasons. First, explaining this process illuminates how the law isformulated and its role in a democratic society. Scholars recognize thatjustices, like all judges, do not robotically interpret text. Rather, theyactively shape and construct legal provisions.5 How this discretion is

4 See EVAN J. MANDERY, A WILD JUSTICE: THE DEATH AND RESURRECTION OF CAPITAL

PUNISHMENT IN AMERICA,at Prologue(2013).5 See RICHARD A.POSNER,HOWJUDGES THINK5 (2008)(The judicial mentality would be of

little interest if judges did nothing more than apply clear rules of law created by

legislators. . . .);BRIAN Z.TAMANAHA,BEYOND THE FORMALIST-REALIST DIVIDE:THE ROLE OF

POLITICS INJUDGING1 (2010) (arguing that legal formalism is a myth, and has historically

been seen as such).


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exercised has profound political implications. Second, understandingjudicial decision-making provides guidance to lawyers and other actorswithin the legal system. If these parties better understand how justices

think and deliberate, they can shape their arguments accordingly. Third,understanding judicial decision-making may aid policymakers inapproaching and potentially improving legal institutions. For example, ifjudges simply impose their own political will on individual cases, as sometheorists contend,6 legislators must acknowledge and address this. AsJudge Alex Kozinski has remarked, the . . . way in which academics affectthe work of the judiciary is by fostering a grand idea that changes ourfundamental approach to law in general, not merely in one particulararea.7

This Article begins by placing the history of the Supreme Courtstreatment of capital punishment in context, and provides a brief analysis ofGregg and its companion cases. Section II summarizes the prevailing

theories of judicial decision-making, focusing in particular on the legalist,attitudinal, and institutional models of jurisprudence. The few studies ofthe Gregg cases are surveyed. Section III applies these models to theindividual Justicesbehavior in Gregg, relying on both the Justices publicand private records and on information gained from interviews withformer law clerks and others involved in deciding Furman and Gregg. Weconclude that only a mixed model of jurisprudence can adequately accountfor the 1976 decisions.8Finally, we offer some reflections on the contextualnature of judging and the limitations of conventional legal research.

I. The Road to Gregg

The Gregg cases can only be understood in historical context, which

this Article now briefly surveys. A more complete history of Gregg,Furman,and the death penalty movement of the 1960s and 70s can be found in AWild Justice.

The purpose and morality of capital punishment has been politicallychallenged in the United States since at least the 1780s. 9 Until relatively

6 See JEFFREY A.SEGAL & HOWARDJ. SPAETH, THE SUPREME COURT AND THE ATTITUDINAL

MODEL REVISITED 23(2002) (arguing that judges are politically and attitudinally driven).7 See Alex A. Kozinski, Who Gives a Hoot About Legal Scholarship?, 37 HOUS.L.REV. 295, 315

(2000).8 As detailed below, since Gregg and Woodson were the lead cases, these two are the focus of

this paper. See infra Parts IVV.

9 See STUART BANNER, THE DEATH PENALTY: AN AMERICAN HISTORY 88 (2003) (By the

1780s and 1790s the propriety of capital punishment for any crime, even murder, was a bitterly

contested issue.).


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recently, however, the Supreme Court never questioned theconstitutionality of the death penalty. Mentioned explicitly in the FifthAmendment, the states right to kill was considered a legislative

prerogative. When the Supreme Court considered capital cases, theygenerally involved right to counsel questions or controversies over theadmission of improper evidence,10rather than any substantive challenge tothe penalty itself.11As late as 1958, Chief Justice Earl Warren regarded theconstitutionality of the death penalty as obvious.12

Ironically, the foundation for the constitutional argument againstcapital punishment rested on an opinion that had nothing to do with thedeath penalty. In Trop v. Dulles,13 the Supreme Court reversed thepunishment of hard labor and the revocation of citizenship for a WorldWar II deserter. Chief Justice Warren declared the defendant s punishmentcruel and unusual. In what would become a key passage, Chief JusticeWarren wrote that the Amendment must draw its meaning from the

evolving standards of decencythat mark the progress of a maturing society.14

In 1962, Arthur Goldberg and his law clerk, Alan Dershowitz,circulated a controversial memorandum on the constitutionality of capitalpunishment.15 Dissenting from the Courts refusal to grant certiorari inRudolph v. Alabama,16where the defendant had been sentenced to death forrape, Justice Goldberg questioned the proportionality of the sentence.Goldberg relied in large part on Warrens opinion in Trop. Even more

10 See MICHAEL A. FOLET, ARBITRARY AND CAPRICIOUS: THE SUPREME COURT, THE

CONSTITUTION,AND THE DEATH PENALTY17 (2003) (detailing the earliest cases to hear capital

concerns).11

There are notable exceptions, however. Louisiana ex rel. Francis v. Resweber, 329 U.S.459, 463 (1947) (rulinginfamouslythat an initial botched execution did not disallow a

second execution attempt); Powell v. Alabama, 287 U.S. 45, 71 (1932) (deciding capital

defendants have the right to an attorney); In re Kemmler, 136 U.S. 436, 44344 (1890)

(declaring the use of electric chair constitutional); Wilkerson v. Utah, 99 U.S. 130, 134 35

(1878) (upholding, unanimously, capital punishment for premeditated murder).12 See Trop v. Dulles, 356 U.S. 86, 99 (1958) (Whatever the arguments may be against

capital punishment, both on moral grounds and in terms of accomplishing the purposes of

punishmentand they are forcefulthe death penalty has been employed throughout our

history, and, in a day when it is still widely accepted, it cannot be said to violate the

constitutional concept of cruelty.).13 Id. at 88, 91.14 Id. at 101 (emphasis added).15 See MARK TUSHNET, CONSTITUTIONAL ISSUES: THE DEATH PENALTY 27 (1994); BANNER,

supra note 9, at 249 (Dershowitz produced a lengthy discussion of the possible constitutionalattacks on the death penalty.).

16 375 U.S. 889, 88991 (1963).


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dramatically, Goldberg challenged capital punishment itself, writingevolving standards of decency . . . now condemn as barbaric and inhumanthe deliberate institutionalized taking of human life by the state.17

Only Justices Douglas and Brennan joined Goldberg in voting to hearRudolph.18 Nevertheless, these three Justices sounded a wake-up call toabolitionist organizations. Most significantly, the NAACPs Legal DefenseFund (LDF), which had long decried capital punishment sdisproportionate imposition on African-American males, took up themantle and began a decade-long campaign challenging theconstitutionality of capital punishment.19

In Witherspoon v. Illinois,20 abolitionists secured their first majortriumph.William Witherspoon was sentenced to death by a jury that waspurposely constituted without any possible opponents of capitalpunishment.21Potter Stewarts majority opinion criticized the trial judgesexclusion of objectors who said they would at least consider usage of the

death penalty.22

The Court reversed Witherspoons sentence because thetrial judge applied such restrictive criteria to the jury pool. Stewart wenteven further and attacked the very practice of capital punishment, callingits proponents without charity.23

Shortly thereafter, inMaxwell v. Bishop,24the Court considered whetherthe due process clause required trials to have separate guilt and sentencingphases. LDF argued that standardless sentencing produced arbitraryoutcomes and systemic racism.25 Although the Supreme Court initiallyvoted six to three to require sentencing guidelines, the agreement brokedown after Justice Abe Fortas stepped down.26 The Court set aside theconviction on Witherspoon grounds and agreed to revisit the issue the

17 See BANNER, supra note 9, at 249.18 See MANDERY, supra note 4, at 29.19 See MICHAEL MELTSNER, THE MAKING OF A CIVIL RIGHTS LAWYER 192 (2006) (describing

the NAACP Legal Defense Funds decision to challenge capital cases).20 391 U.S. 510 (1968).21 SeeBANNER, supra note 9, at 254.22 Id. (The state could not exclude capital jurors who merely had doubts about the

propriety of capital punishment, the Court held. The state could exclude only those jurors

who would automatically vote against a death sentence.).23 See Witherspoon,391U.S. at 520 n.17.24 398 U.S. 262 (1970).25 See LEE EPSTEIN & JOSEPH F. KOBYLKA, THE SUPREME COURT AND LEGAL CHANGE:

ABORTION AND THE DEATH PENALTY 49 (1992) ([They] presented some bare statisticalevidence of racial discrimination.).

26 See MANDERY, supra note 4, at 9192.


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following year.

Fortass resignation reversed the momentum of the abolitionmovement. In McGautha v. California,27 the Court summarily dismissed

capital standards as both constitutionally unnecessary and logicallyincoherent, and in the sweeping words of Justice Harlan, beyond presenthuman ability.28Harlans ruling inMcGautha made two central claims: (1)capital sentencing could not be described in or reduced to precise legallanguage,and (2) such decisions were not for this reason alone arbitraryor irrational.29

In January 1972, the Court turned to the sole remaining issuewhetherthe death penalty violated the Eighth Amendments prohibition againstcruel and unusual punishment.30In Furman v. Georgia,LDFs lead attorney,Anthony Amsterdam, argued to the Court that the death penalty wascruel and unusual in four distinct ways.31 First, the American publicopposed capital punishment and it therefore violated evolving standards

of decency.Second, the death penalty was disproportionately inflicted onminority groups. Third, the death penalty had no proven deterrent value ordeeper penological justification, making its imposition philosophicallybaseless. Finally, juries were given no sentencing guidance, so the decisionto impose death was entirely arbitrary.

The Courts eventual decision was the longest in Supreme Courthistory and contained nine separate opinions. Robert Weisberg saidFurman is not so much a case as a badly orchestrated opera, with ninecharacters taking turns to offer their own arias.32Justice Douglas lamentedthe death penaltys disproportionate infliction on the poor and otherminorities.33 Justices Stewart and White, neither of whom (openly)questioned capital punishments constitutionality or its ethical nature,

focused on the seeming randomness of death sentences. According toWhite, the infrequent application of capital punishment meant it could

27 402 U.S. 183 (1971).28 Id. at 204.29 See Robert Weisberg, Deregulating Death, 1983 SUP.CT.REV. 305, 327 (1983).30 Furman v. Georgia, 408 U.S 238, 239 (1972). The California Supreme Court found capital

punishment unconstitutional in People v. Anderson, 493 P.2d 880, 883 (1972), and Aikens v.

California, 406 U.S. 814, 814 (1972) was consequently rendered irrelevant. Jackson v. Georgia and

Branch v. Texaswere then consolidated under Furman.31 SeeEPSTEIN & KOBYLKA, supranote 25, at 7173 (detailing Amsterdams argument).32 Weisberg, supra note29, at 315.

33 See Furman, 408 U.S. at 24950 (Douglas, J., concurring) (The death penalty is

disproportionately imposed and carried out on the poor, the Negro, and the members of

unpopular groups.).


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achieve neither retribution nor deterrence.34 Stewart said giving juriesunlimited discretion violated basic notions of fairness, and capitalpunishment was therefore as cruel and unusual . . . as being struck by

lightning.35

Justices Marshall and Brennan argued that capital punishmentviolated contemporary standards of decency and should be declared per seunconstitutional.36

The dissents also varied. Justice Blackmun admitted that he personallyopposed capital punishment but said he could find no constitutionalprohibition against it.37 Justices Burger and Powell accused the Court ofviolating judicial restraint, imposing its own personal policy preferences onthe public.38 Similarly, Justice Rehnquist labeled the majority a rovingcommission, striking down laws they, rather than the American people,found politically unpalatable.39

The Courts five-to-four decision shocked the nation.40 Most expertsbelieved Furman meant the end of the death penalty,41 and even several

justices proclaimed capital punishment ended.42

These predictions provedpremature. Within days, President Nixon announced that he wouldremodel the federal governments death penalty statute in order to reduceits arbitrariness.43 The administration chose to implement arecommendation of the American Law Institute: all defendants wouldreceive a bifurcated trial and the ability to present both aggravating and

34 Id. at 311 (White, J., concurring) (When imposition of the death penalty reaches a certain

degree of infrequency, it would be very doubtful that any existing general need for retribution

would be measurably satisfied.).35 Id. at 309 (Stewart, J., concurring).36 Id. at 305 (Brennan, J., concurring) (The punishment of death . . . is cruel and unusual,

and the States may no longer inflict it as a punishment for crimes.).37 Id. at 414 (Blackmun, J., dissenting) (Although personally I may rejoice at the Courts

result, I find it difficult to accept or to justify as a matter of history, of law, or of constitutional

pronouncement.).38 Id. at 375 (Burger, C.J., dissenting) (Our constitutional inquiry . . . must be divorced

from personal feelings as to the morality or efficacy of the death penalty, and be confined to

the meaning and applicability of the uncertain language of the Eighth Amendment. ).39 Furman,408 U.S. at 467 (Rehnquist, J., dissenting).40 See MANDERY, supra note 4, at 24748.41 See id. at 242.42 See BOB WOODWARD & SCOTT ARMSTRONG, THE BRETHREN: INSIDE THE SUPREME COURT

219 (1979) ([Chief Justice] Burger agreed with Stewarts assessment of the decisions impact.

There will never be another execution in this country,he predicted privately.).43 See MANDERY, supra note 4, at 247, 25557 (describing the Nixon Administrations

response).


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mitigating circumstances.44 This proposal received almost unanimousapproval from the Senate Judiciary Committee, which also declared capitalpunishment a valid and necessary social remedy against dangerous types

of criminal offenders.45

The popularity of the death penalty surged. In polls, support for capital

punishment increased from slightly under fifty percent in 1971 to oversixty-five percent in 1977.46Within four years following Furman, thirty-fivestates revised their statutes and re-imposed capital punishment. 47 Themajority of state legislatures implemented the American Legal Institute srecommendations of separating capital trialsguilt and sentencing phases.48Ten states chose a seemingly simpler solution: mandatory execution forthose convicted of first-degree murder.49This theoretically eliminated thepossibility of arbitrariness, guaranteeing identical punishments for thesame types of crime.

Capital punishments renewed popularity and quick revision is

perhaps most attributable to the prevailing political atmosphere.50

TheAmerican public elected Richard Nixon on a tough on crimeplatform,decrying Warren-era judicial activism. Seizing upon the Court scontroversial decision, opportunistic politicians successfully rallied thepublic against an unelected judicial elite.51 In combination with theCourts decisions on race and abortion, the charge had legs.52

The convolution of the Furman decision itself only made matters worse.The Courts decision in Furmanlacked moral leadership53and consequentlyallowed other government bodies to shape and manipulate it. Indeed,Chief Justice Burger encouraged such conduct in his opinion, urginglegislatures to restore their capital punishment statutes.54

44 Id. at 257.45 Id.46 See LEE EPSTEIN,JEFFREY A. SEGAL, HAROLD J. SPAETH & THOMAS G. WALKER, THE

SUPREME COURT COMPENDIUM:DATA,DECISIONS AND DEVELOPMENTS591 (1994).47 See BANNER, supra note 9, at 268.48 See MANDERY, supra note 4, at 25758, 26263.49 See id. at 263.50 See id.at 26263.51 See id. at 274.52 See id. at 26671, 274.53 See Corinna Barrett Lain, FurmanFundamentals, 82 WASH.L.REV. 1, 44 (2007) (describing

the lack of any authoritative opinion in Furman).

54 Furman v. Georgia, 408 U.S. 238, 400 (1972) ([I]f state legislatures and the Congress wish

to maintain the availability of capital punishment, significant statutory changes will have to

be made.).


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In 1975, the Court agreed to hear Fowler v. North Carolina,55 whichconcerned the North Carolina Supreme Courts interpretation of Furman.Justice Douglass absence resulted in a four-to-four deadlock. The

remaining Justices decided to reschedule arguments for the next term.56

When Ford-appointee John Paul Stevens replaced Douglas the followingyear, the Court chose five cases that it believed best reflected the reviseddeath penalty statutes. These cases were consolidated under the lead caseof Gregg v. Georgia.

The quintet represented the gamut of legislative responses to Furman.Georgia mandated a bifurcated trial scheme and required juries to considermitigating and aggravating circumstances. Texas also established abifurcated trial scheme, but allowed the jury to consider far feweraggravating and mitigating factors.57Floridas statute resembled Georgias,but the judge retained ultimate sentencing discretion.58North Carolina andLouisiana each mandated the death penalty for first-degree murder.59

At oral argument, Anthony Amsterdam argued that capitalpunishment continued to be arbitrarily and capriciously imposed underthe new statutes: Jury discretion had not been effectively revised,prosecutorial discretion remained, and plea bargaining allowed equallyculpable defendants to receive different sentences.60 Furthermore,Amsterdam argued that the death penalty remained per seunconstitutional.61 Amsterdam acknowledged the popularity of capitalpunishment, but said this stemmed from ignorance. According to him, ifAmericans knew how randomly the death penalty was actuallyadministered, they would oppose it.62

Solicitor General Robert Bork countered that Amsterdams argumentresulted in a reductio ad absurdum and that capriciousness existed at every

level in the criminal justice system, from arrest to trial.63

If the Court

55 422 U.S. 1039 (1975).56 EPSTEIN & KOBYLKA, supra note 25, at 99 (When the justices deadlocked at 4-4, they

decided to reschedule it for argument the next term.).57 SeeJurek v. Texas, 428 U.S. 262, 26974 (1976).58 Profitt v. Florida, 428 U.S. 242, 24849 (1976).59 Woodson v. North Carolina, 428 U.S. 280, 286 (1976); Roberts v. Louisiana, 428 U.S. 325,

329 (1976).60 See 90 LANDMARK BRIEFS AND ARGUMENTS OF THE SUPREME COURT OF THE UNITED STATES:

CONSTITUTIONAL LAW 62225 (Philip B. Kurland & Gerhard Casper eds., 1977) (containing

Anthony Amsterdams argument).

61 See MANDERY, supra note 4, at 375 (detailing Amsterdams argument).62 See id. at 37379.63 Id. at38587(detailing Borks argument).


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credited Amsterdams argument, it would have condemned the entiresystem. Nothing in the Constitution supported Amsterdams contentionthat death was different. In the Fifth and Fourteenth Amendments (the

only time capital punishment is alluded to), it is indistinctly grouped withliberty and property. Furthermore, Bork identified state legislatures as theonly reliable indicator of contemporary standards of decency.64 Themajority of these supported the death penalty, and had spoken onlyrecently.

In Gregg, the Supreme Court sided with Bork, but over the panoply ofthe five cases, Stewart, Powell, and Stevens struck a middle ground. Theysaid Georgia, Florida, and Texass new sentencing procedures satisfiedFurman, but they declared North Carolina and Louisianas mandatoryschemes unconstitutional.65 According to Stewart, Powell, and Stevens,mandatory sentences had been historically rejected by the vast majority ofstates, and thereby violated contemporary standards of decency.66 They

argued further that mandatory sentences would likely result in widespreadjury nullification.67

Justices Marshall and Brennan maintained the same positions fromFurman, arguing the death penalty violated the Constitution in all cases.68White, Blackmun, Rehnquist, and Burger supported the constitutionality ofthe death penalty statute in each of the five cases. 69According to White, allfive states had effectively eliminated the deficiencies identified in Furman.70

64 Id. at 38385.65 See, e.g., Gregg v. Georgia, 428 U.S. 153, 20407 (1976) ([W]e hold that the statutory

system under which Gregg was sentenced to death does not violate the Constitution.);

Woodson v. North Carolina, 428 U.S. 280, 30205 (1976).66 Woodson, 428 U.S. at 28996, 305 ([W]e conclude that the death sentences imposed

upon the petitioners under North Carolinas mandatory death sentence statute violated the

Eighth and Fourteenth Amendments and therefore must be set aside.).67 This is probable because many jurors would likely be uncomfortable automatically

condemning all first-degree murderers to death. See id. at 29597, 299.68 Gregg, 428 U.S. at 241 (Marshall, J., dissenting) (The death penalty . . . is an excessive

penalty forbidden by the Eighth and Fourteenth Amendments.); see also id. at 231 (In

Furman v. Georgia . . . , I set forth at some length my views on the basic issue presented to the

Court in these cases. The death penalty, I concluded, is a cruel and unusual punishment

prohibited by the Eighth and Fourteenth Amendments. That continues to be my view.).69 See, e.g., id.at 226 (White, J., concurring) (I decline to interfere with the manner in which

Georgia has chosen to enforce such laws on what is simply an assertion of lack of faith in the

ability of the system of justice to operate in a fundamentally fair manner. ).

70 Roberts v. Louisiana, 428 U.S. 325, 350 (1976) (White, J., dissenting) ( I cannot conclude,

as do Mr. Justice Stewart, Mr. Justice Powell, and Mr. Justice Stevens . . . , that under the

present Louisiana law, capital punishment will occur so seldom, discriminatorily, or


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White further contended that the majority had substituted their own policypreferences for sound legal reasoning.71

II. Models of Judicial Decision-Making

Why did the Justices decide as they did in the 1976 cases? This Sectionexamines the dominant theories of jurisprudential behavior and analyzeswhether they can explain the Courts decisions. It concludes bysummarizing the few existing studies of these cases, highlighting theirmethodological limitations, and illustrating how the present Articleimproves upon them.

A. Legalism

Under the most conventional understanding of judicial decision-makinglegalismjudges merely interpret the law as written.72Legalists73 perceive judges as virtual automatons who neutrally read a

text and apply its content to a given situation. According to this view,judges rotely clarify the rules at hand and leave greater issues of policy tolegislatures. Scholars generally differentiate between two types of legalists:textualists, who focus exclusively on the words themselves; andoriginalists, who interpret constitutional provisions according to theFounding Fathers (supposed) intent.74 The labels are not mutuallyexclusive. One can be both a textualist and an originalist, and both campsemphasize the importance of stare decisis.75

Although legalism serves as a template for many written opinions,76

freakishly that it will fail to satisfy the Eighth Amendment as construed and applied in

Furman v. Georgia.).71 Id. at 363 (The plurality claims that it has not forgotten what the past has taught about

the limits of judicial review; but I fear that it has again surrendered to the temptation to make

policy for and to attempt to govern the country through a misuse of the powers given this

Court under the Constitution.).72 See RICHARD A. POSNER,HOWJUDGES THINK41 (2008) (Legalism . . . hypothesizes that

judicial decisions are determined by the law,conceived of as a body of preexisting

rules . . . .).73 Also known as formalists.74 See generally MICHAELJ. GERHARDT ET AL., CONSTITUTIONAL THEORY: ARGUMENTS AND

PERSPECTIVES 175209, 211317 (3d ed. 2007) (providing a detailed discussion of textualism

and originalism).75 In the rare occasions where court precedent, originalism, and textualism are in

opposition, a legalist will likely skew to whichever principle he or she finds most important.

How justices determine such importance is crucial, but lies well beyond the scope of thisArticle.

76 See MANDERY, supra note 4, at 20709.


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the model has faced growing skepticism since the emergence of the legalrealist movement at the beginning of the twentieth century. 77According toearly legal realists, such as Jerome Frank, judges are situated actors whose

personal viewpoints affect their decisions.78

While some realists contendthat judges should strive to be as neutral as possible, all realistsacknowledge that human decision-making is ultimately subjective.

While early realists contended that legalism was intellectually naiveand logically incoherent, contemporary realists, such as Stanley Fish, alsoargue that legalists misunderstand the very notion of rule-following.79Rules do not stand alone. They must be interpreted to carry meaning, andinterpretation naturally involves cognitive preconceptions. Therefore,written provisions can never be neutrally deciphered or mechanicallyapplied. Furthermore, rules will vary in meaning according to the situationat hand and necessitate judicial discretion. Fish argues that modernlinguists have proven language to be an inherently vague enterprise. 80This

linguistic ambiguity demands semantic creativity and multiple interpretiveframeworks.81

The Eighth Amendment offers a vivid illustration here. TheConstitution gives neither an indication of what unusual means, nor athreshold for what constitutes a cruel punishment. The problem deepenswith Chief Justice Warrens evolving standards of decency test. Who,after all, can definitively determine what fulfills contemporary standardsof decency?82 John Ely has remarked that the Eighth Amendmentsprohibition of cruel and unusual punishmentsdemands a reference tosources beyond the document itself.83Thus, it is little wonder that JusticeFrank Murphy declared that [m]ore than any other provision in the

77 Interestingly, Brian Tamanaha argues that many judges and legal scholars actually

viewed legalism as incoherent and unrealistic long before the legal realists, perhaps as far

back as Jeremy Bentham. See generally TAMANAHA, supra note 5.78 See generallyJEROME FRANK,COURTS ON TRIAL (1973).79 See generally Stanley Fish, Dennis Martinez and the Uses of Theory, 96 YALEL. J. 1773, 1786,

1799 (1987).80 See id. at 1773 (rejecting the proposition that legal provisions can always provide an

articulated method or formula or rule or piece of instruction).81 Although these are the three most dominant critiques, the concept of legalism has been

attacked from a number of other perspectives. See generally DUNCAN KENNEDY,ACRITIQUE OF

ADJUDICATION (1997); TAMANAHA, supra note 5, at 3031 (claiming legalism has been viewed

as absurdfor centuries).82 See TAMANAHA, supra note 5, at 2732. Further, this test explicitly expects standards of

decency to evolve. Yet criminal justice does not always progress, but (as we saw withmandatory sentencing) may actually devolve.

83 Id.at 13.


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Constitution, the Eighth Amendment risks being guided by the Court sown conscience.84

B. Attitudinalism

The attitudinalist model offers an alternative that addresses some oflegalisms deficiencies. Originally proposed by Glendon Schubert,85 andpopularized by Jeffrey Segal and Harold J. Spaeth, 86attitudinalists employempirical research to prove that judicial decision-making is drivenprincipally by judgespolitical preferences. Segal and Spaeth believe thatRehnquist vote[d] the way he d[id] because he is extremely conservative,Marshall voted the way he did because he is extremely liberal.87 In thisview, judges personal policy preferences, and nothing more, determinetheir votes.

Critics of attitudinalism contend that judges differ in ideologicalintensity from one another. Furthermore, it remains unclear how Segal and

Spaeths model accounts for the behavior of moderates.88 Attitudinalscholars assume that political liberals and conservatives will be judicialliberals and conservatives on every issue. This, say the critics, ignores thesubtlety and complexity of individual actorspolitical philosophies whosevoting records defy conventional labels. The model also fails to explainwhy justices sometimes vote against their own political inclinations, as theeconomically conservative Oliver Wendell Holmes did in his progressivedissent in Lochner v. New York.89

C. Institutionalism

Although the attitudinal model retains some support, it has been

84 See BANNER, supra note 9, at 237.85 GLENDON A. SCHUBERT, THE JUDICIAL MIND: ATTITUDES AND IDEOLOGIES OF SUPREME

COURTJUSTICES19461963, at 2223 (1965).86 SEGAL &SPAETH,supra note 6.87 Id.at 86.88 See POSNER, supra note 72, at 1932 (offering a critique of attitudinalism); see also Barry

Friedman, Taking Law Seriously, 4 PERSP. ON POL. 261, 26672 (2006) (discussing

attitudinalisms flaws).89 See 198 U.S. 45, 75 (1905) (Holmes, J., dissenting) (supporting a law limiting workers

hours). The progressive Felix Frankfurters conservative opinion in Minersville School District

v. Gobitis is another common example of this. See 310 U.S. 586, 598 (1940) (ruling that public

schools could require students to salute the flag and recite the Pledge of Allegiance despite

any religious objections; while Frankfurter wrote of the follyof this measure, he called his

belief . . . no proof of [the measures] unconstitutionality).


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eclipsed by the institutionalist paradigm.90 Institutionalists acknowledgethat justices are political actors, but also contend that laws and legalinstitutions affect judicial decisions. According to this model s proponents,

judicial interpretation only makes sense against a larger structuralbackground.91 Judges cannot simply read whatever they desire into thelaw. They must frame their opinions according to those principles the lawitself seeks to promote.92 The role of judging thus involves certaininstitutional constraints and norms of practice that prevent justices fromacting purely attitudinally.93

While the content of these principles may vary temporally,institutionalists generally believe the dominant principle at any time isupheld through a historical chainof judicial decisions.94This chain bothconstitutes and perpetuates the law, and endows legal institutions withindependent force that requires judges to do more than mechanicallyinterpret the law or engage in judicial politics. According to

institutionalists, legalists and attitudinalists miss this fundamental point,and in doing so, ignore the importance of stare decisis in reinforcing thelaws foundational integrity.95

The institutionalist viewpoint is divided between two camps. The first,generally known as the strategic (or thin) approach, argues that judgesbase their decision upon two major factors: (1) the preferences of theircolleagues, and (2) how they expect other governmental bodies (such as thePresident and Congress) to respond to their opinions.96According to this

90 See generally SUPREME COURT DECISION-MAKING: A NEW INSTITUTIONALIST APPROACH

(Cornell W. Clayton & Howard Gillman, eds., 1999) [hereinafter SUPREME COURT DECISION-

MAKING]. This is not to say that both attitudinalism and institutionalism have beenquantitatively tested and institutionalism has proven triumphant, but rather that the vast

majority of contemporary literature on judicial behavior now focuses more upon institutional

than attitudinal concerns.91 Id. at 3 ([A]ny attempt to explain behavior with reference to beliefs but not to contexts

such as institutional settings will inevitably be incomplete.).92 Id. at 4 (noting that judges often feel an obligation to act in accordance with particular

expectations and responsibilities, presumably determined by what the law itself seems to

require).93 See POSNER, supra note 72, at 93 (discussing the different factors which affect judges

decisions beyond mere policy preferences).94 For a more philosophical view of this, seeRONALD DWORKIN, LAWS EMPIRE228 (1986)

(discussing laws interpretive chain).95 Id. at 401. Of course, the very notion of the law s foundational integrity (and what

exactly constitutes it) is debatable.96 Seegenerally CHARLES H. GEYH,WHEN COURTS AND CONGRESS COLLIDE: THE STRUGGLE

FOR AMERICAS JUDICIAL SYSTEM (2006); THOMAS H. HAMMOND ET AL., STRATEGIC BEHAVIOR


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view, justices seek to promote their own political opinions, while adaptingto a variety of internal and external constraints. For example, if a justicebelieves a particular opinion will be reversed by Congress or potentially

alienate fellow justices and Court allies, he or she may temper that positionor even abandon it.

Interpretive (or thick) institutionalists97acknowledge that judges actstrategically, but do not believe they are only motivated by colleagues orother government bodies.98 Influenced by Dworkin and Fish, theseinstitutionalists contend that legal institutions, and the responsibility ofbeing a judge, restrain and affect judicial behavior. In this paradigm,judges are not merely game theorists, continually asking how they can bestimpose their particular viewpoint. Rather, they care about the Court sreputation for impartiality and fairness. Justices will therefore try andavoid transparently attitudinal positions.

The importance of public opinion on the Supreme Court is particularly

critical to the interpretive institutionalist camp.99

Since justices are neitherelected nor easily impeachable, one might assume they are immune frommajoritarianism. Yet, as Lawrence Baum argued, although the Court neednot simply follow the election returns, unpopular decisions can endangerits institutional legitimacy.100Drawing on Baum, others suggest the Courtmay seek to maintain a zone of acquiescence based upon the publicmood.101Although scholars acknowledge that the boundaries of this zone

AND POLICY CHOICE ON THE U.S. SUPREME COURT (2005);John Ferejohn & Charles Shipan,

Congressional Influence on Bureaucracy, 6 J. L. ECON. & ORG. 1 (1990); Mark J. Richards &

Herbert M. Kritzer, Jurisprudential Regimes in Supreme Court Decision Making, 96 AM.POL.SCI.

REV. 305 (2002); Pablo T. Spiller & Matthew L. Spitzer, Where is the Sin in Sincere? Sophisticated

Manipulation of Sincere Judicial Voters (With Applications to Other Voting Environments), 11 J.L.ECON.&ORG. 32 (1995).

97 Also occasionally referred to as the newinstitutionalists. SeeSUPREME COURT DECISION

MAKING, supranote 90, at 56.98 See generally id.;Christopher J. Casillas et al., How Public Opinion Constrains the Supreme

Court, 55 AM. POL.SCI.REV. 74 (2011); Roy B. Flemming & Dan B. Wood, The Public and the

Supreme Court: Individual Justice Responsiveness to American Public Moods, 41 AM.J.POL.SCI. 468

(1997); Kevin T. McGuire & James A. Stimson, The Least Dangerous Branch Revisited: New

Evidence on Supreme Court Responsiveness to Public Preferences, 66 J.POL.1018 (2004).99 See generally Michael W. Gile et al., The Supreme Court in American Democracy: Unraveling

the Linkages Between Public Opinion and Judicial Decision Making, 70 J.POL. 293, 29495 (2008);

William Mishler & Reginald B. Sheehan, Public Opinion, the Attitudinal Model, and Supreme

Court Decision Making: A Micro-Analytic Perspective, 58 J.POL. 169, 19697 (1996).100 See LAWRENCE BAUM, JUDGES AND THEIR AUDIENCE: A PERSPECTIVE ON JUDICIAL

BEHAVIOR 6465 (2006) (discussing the impact of public opinion on Supreme Courtlegitimacy).

101 See Casillas et al.,supranote 98, at 79.


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Gregg v. Georgia, specifically.108Each argues the Supreme Court followed asingle model of judicial behavior.

In Disorder in the Court,Robert A. Burt examines the 1976 cases through

the lenses of Justices Marshall, Brennan, and Stewart.109Though Burt doesnot mention any single model of judicial decision-making, he implies theJustices opinions were an example of interpretive and strategicinstitutionalism. In Burts view, the pluralitys leader, Potter Stewart,personally opposed capital punishment but felt abolishing the deathpenalty would too strongly defy public opinion.110 Stewart also sought acompromise between the blanket liberalism of Marshall and Brennan andthe strict conservatism of the Courts Nixon appointees. Burt stated that theplurality carved, a middle ground between the polarities represented bythe staunchest proponents and opponents of the death penalty.111

Corinna Barrett Lains Furman Fundamentals supports an interpretiveinstitutional model. Lain cites Gregg as evidence that the Supreme Court,

often seen as a protector of minority rights and a promoter of counter-majority change, is in fact deeply affected by public opinion. Lain arguesthe plurality was shaken by the public backlash following Furman andchose to reinstate capital punishment rather than compromise the Court sinstitutional legitimacy.112Lain believes [r]emaining true to the principlesof Furman would have been risky and Gregg was therefore a judicialsurrender to the perceived wishes of the public.113The plurality, above allelse, sought to protect the Courts institutional authority.114

Lee Epstein and Joseph F. Kobylka also believe the Gregg decisionexemplified interpretive institutionalism. Epstein and Kobylka argue thatStewart, Powell, and Stevens were deeply affected by the countrys post-Furmansupport for capital punishment.115Since the majority of Americans

108 See generally, e.g., David C. Baldus et al., Comparative Review of Death Sentences: An

Empirical Study of the Georgia Experience, 74 J. CRIM.L.&CRIMINOLOGY661, 672 (1983).109 Robert A. Burt, Disorder in the Court: The Death Penalty and the Constitution, 85 MICH.L.

REV. 1741, 176676 (1987).110 See id. at 177778 (noting that if he abolished capital punishment, Stewart was . . .

concerned by the prospect of lawless conduct from supporters of the death penalty).111 Id.at 1778.112 See Lain, supra note 53, at 6364 (In the face of a strong challenge to that authority, the

Court in Gregg did what the Court usually does when met with intense resistance retreat. . . .

The Supreme Court was under tremendous pressure in Gregg, and it is hard to imagine the

Justices not succumbing to that pressure.).

113 Id.114 Id. at 63.115 See EPSTEIN & KOBYLKA, supra note 25, at 132 (The political environment . . . probably


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supported the death penalty, the plurality feared ending capitalpunishment would challenge the Courts institutional integrity.116Epsteinand Kobylka also fault Anthony Amsterdams all or nothing strategy.

The authors believe Amsterdam trapped himself in a tyranny ofabsolutes,seeking to abolish capital punishment entirely rather than pushfor more incremental reform.117

Each of these three studies relies almost exclusively on the Courtswritten opinions. This is characteristic of the sort of analysis generallypublished in law review articles.118Case opinions can be illuminative, butthey are limited. Written decisions rarely (if ever) contain the full range ofeven an individual judges thinking, as opinions are purposely legalistic.Brian Tamanaha points out that the style in which [a] decision ispresented is not meant to represent an indication of how it was reached. 119Written statements provide clues, rather than explanations, of a judgesactual intentionsrationalizations rather than reasons, shadow rather

than substance.120

One must always study a variety of motivationalfactors, including justicescapacities, modes of selection, and professionalnorms, in order to adequately understand their greater reasoning for aparticular decision.121 Written opinions are valuable data, but researcherswho rely upon what is said in front of the curtain, as opposed to what goeson behind it, will almost necessarily conclude that decisions are situatedwithin one of the prevailing orthodoxies.

It is possible to create a fuller picture. Other than opinions, judicialmotivations can be traced through three principal sources: public records(of which written opinions constitute but a small part); archivalinformation, such as personal papers and correspondences; and interviewswith clerks and other relevant parties.122 Mandery relies on all of thesetypes of evidence inA Wild Justice.

When one looks beyond the opinions in Gregg and its accompanyingcases to examine this greater universe of evidence, a more complex

contributed to the resolution of Gregg.).116 Id.117 Id. at 135 (Given the badly splintered majority in Furman,a more moderate strategy

might have furthered LDF goals more readily than the all or nothing approach that

Amsterdam presented the Court in Gregg et al.).118 See Lee Epstein & Gary King, The Rules of Inference, 69 U. CHI. L. REV. 1, 1 (2002)

(discussing the ways in which most legal research is conducted).119 TAMANAHA, supra note 5, at 124.

120 DEL DICKSON,THE SUPREME COURT IN CONFERENCE(19401985), at xxiv (2001).121 POSNER, supra note 72, at 5.122 Mandery uses, and we use here, all three kinds of sources.


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decision-making process is revealed than that presented by Burt, Lain, andEpstein and Kobylka. The resulting picture complicates conventionalexplanations of judicial decision-making, revealing individuals with

complex motivations and an institution that defies simple explanation. Thefollowing Section traces each Justices decision-making process using theseadditional sources.

IV. The GreggCourt

A. Justice Potter Stewart

Though this has not generally been reported, Justice Stewart personallyopposed capital punishment. In an early interview, Stewart said that, as alegislator, he would vote against the death penalty. 123 His first writtenopinion on capital punishment, in Witherspoon v. Illinois,124also revealed hisantipathy for the death penalty. Quoting Arthur Koestler, Stewart drew adistinction between those with and without charity, admonishing the latterto better recognize their fellow human beings.

The division is not between rich and poor, highbrow andlowbrow, Christians and atheists: it is between those who havecharity and those who have not. . . . The test of ones humanity iswhether one is able to accept this factnot as lip service, butwith the shuddering recognition of a kinship: here but for thegrace of God, drop I.125

Interviews with Stewarts former law clerks and Justice Brennans casehistories offer further support for Stewarts attitudinal disdain for capitalpunishment.126Stewart opposed the death penalty on Kantian grounds. Hefound capital punishment impermissible simply because it treatedpeople as objects.127

Stewarts first inclination was to write a short snapper128 simplyfinding the death penalty cruel and unusual in treating people as

123 Robert B. Bendiner, The Law and Potter Stewart: An Interview with Justice Potter Stewart,

AM. HERITAGE, DEC. 1983, at 98, available at http://www.americanheritage.com/content/law-

and-potter-stewart-interview-justice-potter-stewart.124 See 391 U.S. 510, 512, 523 (1968).125 Id. at 520 n.17.126 See Memorandum from William J. Brennan, Jr., Assoc. Justice, U.S. Supreme Court, The

Case Histories: The Death Cases cxli (1971) (on file with the Library of Congress) (describing

Stewarts personal opposition to capital punishment); see also MANDERY, supra note4, at 64,

8182.127 MANDERY,supra note 4, at 18788.128 Id. at 197.


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things.129 He contemplated declaring capital punishment suspect andwriting that the death penalty had all the indicia of cruelty andunusualnessand therefore it was up to the State to justify it.130Stewart

explained this in a memo to Brennan, in which he remarked the State mustprove the necessity of anything (such as capital punishment) severe,offensive, and arbitrary.131Stewart said in conference that someday theCourt will hold the death penalty to be unconstitutional. If the Court holdsit constitutional in 1972 it would delay its abolition.132

Stewart was unsure, though, how his personal position could beconstitutionally justified. The question troubled him deeply. After Furmanwas argued, Stewart said he wished certiorari had never been granted. 133To one of his clerks, Stewart said, I would like to strike down the deathpenalty statutesbut dont know [on what legal grounds].134During thespring of 1970, Stewarts clerk wrote a memo declaring capital punishmentto be cruel and unusualbecause retribution was not a legitimate basis for

punishment. Stewart found it legally wanting, and for much of the termhad no operative draft.135

As the term wore on, Furman weighed on Stewart. He becameparticularly troubled by the death penalty moratorium.136One of his clerksfrom the 1971 term, William H. Jeffress, stated that Justice Stewart wasstrongly affected by the moratoriumhe often discussed how manypeople were currently on death row and what the consequence of Furmanwould be.137Brennans case histories confirm Stewarts anxiety: It beganto weigh heavily on him [Stewart] that 700 people would die after adecision upholding it. Eventually, he just decided that he could not vote touphold it. After the argument, his position became stronger andstronger.138

But Stewarts Furman opinion did not reflect his ethical judgment.

129 Id.130 See Brennan, supra note 126, at cxxxix.131 Id. at cxlii.132 See William J. Brennan, Jr., Assoc. Justice, U.S. Supreme Court, Conference Notes on

Furman v. Georgia (1971) (on file with the Library of Congress).133 MANDERY,supra note 4, at 16667.134 Interview with William H. Jeffress, Former Law Clerk to Assoc. Justice Potter Stewart of

the U.S. Supreme Court (Oct. 12, 2009).135 Interview with Benjamin Heineman, Jr., Former Law Clerk to Assoc. Justice Potter

Stewart of the U.S. Supreme Court (Oct. 23, 2009).

136 Id.137 SeeJeffress, supra note 134.138 See Brennan, supra note 132, at clix.


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Instead it was based on the arbitrary application of the death penalty. Thisshift was an accommodation to Justice White. Throughout the Furmanproceedings White refused to reveal where he stood.139 Recognizing

Whites vote would form a majority in favor of the death penalty, Stewartconfronted him on the issue.140White admitted the death penalty troubledhim, but leaned toward upholding the Georgia statute. Stewart and Whitenegotiated a compromise. Rather than reject capital punishment altogether,Stewart would draft an opinion banning its current practice for beingarbitrary and capricious. White found this satisfactory and agreed towrite along similar lines. Stewart perceived the sacrifice as necessary. Asone Stewart clerk confirms in Brennans case histories, [o]ver and overStewart said that White was about to join [the more conservative] LewisPowell if Stewart didnt come up with a narrower ground than an outrightban on the death penalty.141 This compromise has never before beenreported, but it changed the fundamental dynamics of the case. After the

deal became known, Justice Brennan said that Stewart had to pay a priceto get Byron.142

Stewarts clerks for both the 1971 and 1975 terms contend that Stewartstruck this deal because he believed it would end capital punishmentthrough the back door. One clerk speculates that Stewart figured Furmanwould set up so many bells and whistles for legislatures to jump throughthat they would abandon the effort.143 Rather than establish detailedsentencing guidelines, Stewart believed states would simply ceaseexecuting people.

Of course, this prediction proved inaccurate. Following Furman,thirty-five states (with the federal governments encouragement) eitherformulated sentencing guidelines or passed mandatory sentences. Formerclerk Ron Stern recalls Stewart being shockedby the publics newfoundembrace of capital punishment.144 Stern stated: Stewart was deeplyaffected by how society reacted following Furman.It was far stronger thanhe ever expected. . . . Particularly surprising to the Justice were themandatory sentences, which Stewart still refused to believe . . . adequately

139 See MANDERY, supra note 4, at 197201 (describing how not even Whites law clerks

knew how he would vote).140 See Brennan, supra note 132, at cxlvi; see also MANDERY, supra note 4, at 20001.141 See Brennan, supra note 132, at cxlix.142 MANDERY, supra note 4, at 223.143 Interview with Anonymous (Oct. 14, 2009) (name withheld by request) (on file with

author).144 Interview with Ron Stern, Former Law Clerk to Assoc. Justice Stewart of the U.S.

Supreme Court (Nov. 18, 2009).


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reflected their states public opinion.145Stewart admitted to another clerkthat he had misjudged the passion among voters.146Mandatory statutesparticularly saddened him, and Stewart entered into a hastily arranged

deal with Powell and Stevens to uphold the guided-discretion schemes butstrike down the mandatory statutes. With Burger, Rehnquist, andBlackmun on one side, and Marshall and Brennan on the other, the troikaheld the power to decide each case.

Stewarts Gregg opinion was an example of both interpretive andstrategic institutionalism. According to Stern, Stewart effectivelyrecognized that reversing all thirty-five statutes would be a blatantexample of judicial overreach, especially since it was Stewart himselfwho had laid their groundwork. While Stewart may still have attitudinallyfavored abolishing the death penalty, being a good lawyer . . . [he] feltconstrained by the law which he had helped to create.147 Indeed, at the1976 conference, Stewart openly admitted that his earlier belief in death

statutesas dead lettershad been woefully incorrect.148

Stewarts concern for the Courts institutional integrity was perhapsthe most commonly repeated theme throughout interviews with his clerks.Stewart said [t]he Court is not a council of Platonic guardians given thefunction of deciding our most difficult and emotional questions accordingto the Justicesown notions of what is good or wise and politic.149WilliamJeffress states that Stewart was primarily concerned about the overreachof judicial power,and always careful not to upend the lawor go toofar. . . . Potter Stewart was really a human being, and did not have a rotejudicial philosophy like Thomas and Scalia. He (Stewart) thought ofhimself as a lawyer and there were a lot of grey areas.150 These greyareasincluded any decision that would shirk public opinion or go beyondthe Courts zone of acquiescence.151

Stern characterizes Stewarts worldview as prudential: Stewart had avery modest view of the Courts role in a democracy; it should protectthose individual liberties guaranteed by the Constitution and stay its hand

145 Id.146 SeeJeffress,supra note 134.147 Id.148 See William J. Brennan, Jr., Assoc. Justice, U.S. Supreme Court, Conference Notes on

Gregg v. Georgia (1975) (on file with the Library of Congress).149 Robert S. Marsel, Mr. Justice Potter Stewart: The Constitutional Jurisprudence of Justice

Potter Stewart: Reflections on a Life of Public Service, 55 TENN.L.REV.1, 12 (1987).150 SeeJeffress, supra note 134.151 See BAUM, supra note 100, at 64.


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otherwise.152Heineman also cites Stewarts belief that he was always in aclassic dialogue with other branches of government.153 Here, Stewartacted as a strategic interpretivist, motivated by a desire to evade conflicts

with powerholders in other institutions.154

Another clerk confirms this,remarking that the Justice would have been unlikely to go off thelegislative or public radar.155 According to Potter Stewart, Jr., his fatheralways focused intensely on the case at hand, and was especially careful tolimit its potential ramifications.156 This again helps to explain Stewartsdecision in Gregg; nothing would be more radical than reversing his ownprecedent, and Stewart therefore felt little choice but to uphold capitalpunishment.

An attitudinal element remained, however, in Stewarts decision to jointhe troika and strike down mandatory sentences in Woodson. One clerksummarizes that Justice Stewart was not an everything or nothing guy.157Stewart recognized that abolishing capital punishment could threaten the

Courts popular legitimacy. Nevertheless, he likely felt striking mandatorysentences would inspire considerably less backlash.

Stewarts opinions in the Furman and Gregg cases involved bothattitudinal and institutional motivations. The Justice was personallyrepulsed by capital punishment,and hoped his compromise with White inFurman would end the death penalty. By the time of the 1976 cases,however,the American people had made clear that the death penalty wasnot going away. Abolishing capital punishment altogether would thushave been a blatantly ideological act and would contradict Stewart soverriding belief in institutional constraint.

B. Justice Lewis F. Powell, Jr.

Like Stewart, Justice Powells decision in the 1976 cases offers evidencefor a mixed model of jurisprudence. Powell was equally concerned withmaintaining the Courts institutional integrity. In striking North Carolinasand Louisianas mandatory statutes, however, he also acted on moreattitudinal inclinations.

Prior to joining the Court, Powell had no strong attitudinal position on

152 See Stern, supra note 144.153 See Heineman, supra note 135.154 See SUPREME COURT DECISION-MAKING, supra note 90, at 7071.155 Interview with Anonymous (Oct. 14, 2009) (name withheld by request) (on file with

author).156 Interview with Potter Stewart, Jr. (Mar. 23, 2010).157 Anonymous, supranote 155.


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capital punishment.158 Powell was neither enthusiastically for norcategorically against the death penalty, but fiercely rejected theextremes on both sides.159His biographer Jeffries stated:

Im confident that if Powell had confronted the constitutionalityof the death penalty before going to the Court, he would havethought it constitutional because of its long history and becauseof the language of the Due Process Clauses. But he never hadoccasion to confront the issue. So the constitutionality of capitalpunishment was for Powelllike many other constitutionalissuesunexamined territory when he went on the Court. Thatsnot to say that he wouldnt have had an instinct but only that hedidnt have a settled opinion.160

Early records confirm Jeffries view. Before arriving on the Court,Powell had commented on the death penalty only once in a brief 1966memorandum on criminal policy.161Powell recognized that the number ofexecutions had steadily dwindled, and proclaimed the use of capital

punishment not one of large dimensions nor of first importance in termsof the administration of criminal justice.162

Larry Hammond, who helped draft Powells opinion in Furman, alsostressed Powells attitudinal moderation and institutional inclinations:

From the beginning Powell admitted he was weakly against thedeath penalty, and as a legislator would vote against itsimplementation. That being said, he also found no constitutionalgrounds to justify its abolition, and mentioned this to me anumber of times. Powell was most troubled by the idea oftampering with a penalty that had . . . been around since theRepublics founding but was also widely supported by theAmerican public.163

In the Furman conference, Powell remarked that in eight of theirprevious cases the Court had found capital punishment constitutional.164He warned against going too far and usurping the role of the

158 SeeJOHN C.JEFFRIES,JR.,JUSTICE LEWIS F.POWELL,JR.409(1994).159 Id.160 Email from John C. Jeffries, Jr., Former Law Clerk to Assoc. Justice Lewis F. Powell, Jr.

of the U.S. Supreme Court, to Evan Mandery (Dec. 12, 2009)(on file with author).161 Internal Memorandum from Lewis F. Powell, Jr. (June 25, 1966) (on file with the Powell

Archives at Washington and Lee University School of Law).162 Id.

163 Interview with Larry Hammond, Former Law Clerk to Assoc. Justice Lewis F. Powell, Jr.of the U.S. Supreme Court (Nov. 11, 2009).

164 See Brennan, supra note 132.


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legislature.165 Racial disparities disturbed Powell more. While Powelladmitted that a racially discriminatory death penalty could be cruel andunusual, he refused to concede that this made the penalty itself

unconstitutional. Powell also believed that African-Americans increasingprevalence on capital juries would eventually eliminate the problem ofsystematic discrimination.166

Powell argued that the Foundersoriginal intent and the long line ofprecedent allowed for a death penalty and that the matter of itsadministration is therefore best left to state legislatures.167 And whilePowell acknowledged the penalty could be discriminatorily applied, hethought this issue better settled through legislation rather than judge-made law.168

Powells precedent-based position in Gregg echoed his stance inFurman. Though Powell had not joined the Furman majority, he nowtreated the Courts previous decision as binding precedent.169 Powell

remarked that Furman is law for me.170

The Justice even conceded thatFurman had served a purpose through eliminating arbitrariness andproviding salutary review.171

Yet Powells votes in Woodson and Roberts reflect an attitudinaldiscomfort with capital punishment. Here the Justices feelings that NorthCarolinas and Louisianas statutes had gone too far and should beabolished, were seemingly at odds with his previous support for judicialrestraint.172According to Hammond, Powell found mandatory sentencingslack of mercy and overall harshness deeply troubling.173 As Powelldescribed to one clerk, while he believed capital punishment might benecessary to satisfy societys need for revenge,174Powell also felt NorthCarolinas and Louisianas statutes were callous and unnecessary.

165 Id.166 Id.167 Furman v. Georgia, 408 U.S. 238, 418 (Powell, J., dissenting) ( [T]he majoritys ruling

encroaches upon an area squarely within the historic prerogative of the legislative branch . . .

[i]t is the very sort of judgment that the legislative branch is competent to make and for which

the judiciary is ill-equipped.).168 See Hammond, supra note 163.169 See Brennan, supra note 132.170 Id.171 Id.172 Id.

173 See Hammond, supra note 163.174 Interview with Christina B. Whitman, Former Law Clerk to Assoc. Justice Lewis F.

Powell, Jr. of the U.S. Supreme Court (Nov. 12, 2010).


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Powells attitudinal reservations are further reflected in comments tohis law clerk, Christina Whitman.175 Whitman says Powell hopedgovernors would pardon many of those on death row, thereby preventing

a mass execution. When governors hesitated to act, Powell pushed to havecapital convicts cases remanded and resentenced under the newsentencing statutes.176Although Powell eventually abandoned this idea asunfeasible, the prospect that Gregg might result in several hundredexecutions made him squirm.177Powell believed capital punishment wasconstitutional, but was personally repulsed by mandatory sentences.

C. Justice John Paul Stevens

Stevensdecisions in the 1976 cases cannot be explained by any singlemodel. Though Stevensdecision in Gregg conforms to the legalist model,his stance in Woodson and Roberts is an example of attitudinalism. LikeJustices Stewart and Powell, Justice Stevens had personal reservations

about the death penalty, but felt uncomfortable striking it down entirely.Early in his career on the Seventh Circuit, Stevens neither encountered

any capital cases nor openly discussed his thinking on the death penalty. 178During his 1975 confirmation hearings, the future Justice was vague on thisissue: When asked by Senator Edward Kennedy if he thought capitalpunishment was an effective deterrent, Stevens merely remarked that hisfirst reaction might differ tremendously from his decisions on theCourt.179

During the 1976 conference, Stevens advocated a precedent-basedposition similar to Powells.180 Stevens believed Marshall and Brennansviews would eventually become law,but he had no doubtthat capitalpunishment was a permissible penalty under the Constitution.181While

Stevens personally felt capital punishment would wither away, here hewas most influenced by Court precedent and textual literalism.

Like Powell, Stevens acted attitudinally in Woodson and Roberts.Declaring the North Carolina statute a monster,Stevenscalled anything

175 Id.176 See MANDERY, supra note 4, at 41517.177 SeeJeffress, supra note 134, at 429.178 See BILL BARNHART & GENE SCHLICKMAN,JOHN PAUL STEVENS: AN INDEPENDENT LIFE

212 (2010).

179 Id. at 213.180 See id.181 Id.


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that increased executions abhorrent.182 Though Stewarts and Powellssimilar stances made them easy partners here, Stevens recent Court arrivalmay have also played a role in this alliance.

At the time of Gregg, the junior Justice was still finding his footing andcautious not to go too far in either direction. Stewart clerk Ron Stern statedthat Justice Stevens found Powells and Stewarts middle positions anappealing compromise.183

Justice Stevensreservations regarding capital punishment have latelybecome clearer. In a recent article, Stevens highlighted the death penalty spotential for errorand repeatedly declared the country would be muchbetter off without it.184 In an interview, Stevens proclaimed the nationscapital punishment system shot through with racism, skewed towardconviction, infected with politics and tinged with hysteria.185Nevertheless, Stevens affirmed capital punishments constitutionality rightup until his retirement, maintaining a clear position of judicial restraint.186

D. Justice Byron R. White

Justice Whites opinions in the Furman and Gregg cases wereattitudinal. Constitutional provisions affected White less than tangibleresults: Either capital punishment should improve society, or the nationwas better off without it. Whites position ultimately had less to do withtext or precedent than his personal evaluation of contemporary publicpolicy and what he viewed as the legitimate purpose of criminal law.

Unlike many of his colleagues, White never publicly disclosed hispersonal feelings on capital punishment. White categorically rejectedpolitical classifications, remarking that being a conservative or a centrist isall in the minds of the speaker. It just depends on what you thinkand if

you think Im one, youre right, but other people might think Imsomething else and theyre right.187 White definitively denied politicallabels, once remarking that [l]abels mean nothing. They dont make policy

182 See Brennan, supra note 132.183 See Stern, supra note 144.184 See Abdon M. Pallasch, High Court Justice: U.S. Would Be Better Off Without Death Penalty,

CHI.SUN-TIMES, May 12, 2004, at 12.185 See Adam Liptak, Ex-Justice Criticizes Death Penalty, N.Y.TIMES, Nov. 27, 2010, available at

http://www.nytimes.com/2010/11/28/us/28memo.html?_r=0.186 Until relatively recently, actually. SeeBaze v. Rees, 553 U.S. 35, 87 (2008) (Stevens, J.,

concurring) (writing for himself, Stevens would have maintained capital punishment s

constitutionality but questioned its purpose).187 See DENNISJ.HUTCHINSON,THE MAN WHO ONCE WAS WHIZZER WHITE:APORTRAIT OF

JUSTICE BYRON R.WHITE 433 (1998).


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and they dont decide practical problems.188 Former White clerk DavidKendall stated that White was particularly concerned with the practicaleffects of his decisions: The Justice believed law could be discerned by

looking carefully at consequences.189

Whites comments during the Furmanconference revealed his singular

focus on policy: Since the death penaltys infrequency prevented it fromkilling those who should be killed,White believed it presently unfairand impermissible.190 Though he expressed doubt that Joe would bedeterred by killing John, state-imposed death was too infrequentlyimposed to say for certain.191 In Whites opinion, if this trend continued,the community would reject capital punishment altogether, and ittherefore either needed to be transformed or abolished.192White concludedhis comments with a refusal to legalize the death penalty in this time inour history.193

Whites ends-based jurisprudence was also clear in his written opinion.

According to White, since capital punishment was so infrequentlyimplemented, it failed to serve as any more effective a deterrent than lifeimprisonment.194 This lack of penological justification made the deathpenalty both wanton and unnecessary, and therefore cruel to impose.195InWhites view, states should provide guidelines to increase the number ofexecutions or abolish them altogether.196 His compromise with Stewartdemanded just that.197

Since guidelines were provided in all five of the 1976 cases, Whitevoted to uphold every capital statute. White believed each state hadsatisfactorily met the testhe had in mind.198As he told his colleaguesin conference, I thought . . . that once you provide juries with standardsthe number of death sentences would increase, and that is what is

happening.199

Capital punishment could presumably become an effective

188 SeeMANDERY, supra note 4, at 205.189 Interview with David Kendall, Former Law Clerk to Assoc. Justice Byron R. White of the

U.S. Supreme Court(Dec. 9, 2010).190 See Brennan, supra note 132.191 Id.192 Id.193 Id.194 Furman v. Georgia, 408 U.S. 238, 311 (1972) (White, J., concurring).195 See supra Part II.196 See MANDERY, supra note 4, at 21517.

197 Id.198 See Brennan, supra note 132.199 Id.


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deterrent, satisfying Whites policy concerns.

E. Justice Harry A. Blackmun

Justice Blackmuns stance in the 1976 caseswas legalistic, as it had beenin Furman. Although personally opposed to capital punishment, Blackmuncould find no constitutionally grounded reason to restrict its imposition.

Justice Blackmun made his opposition to capital punishment clear fromhis earliest days on the bench. As an Eighth Circuit judge, Blackmuncriticized the death penaltys lack of penological justifications.200In a 1970interview, Blackmun admitted that as a legislator he would plump forcapital punishments appeal.201 Blackmun openly expressed hisreservations in Furman. He began his opinion by stating that he yield[ed]to no one in the depth ofhis distaste, antipathy, and, indeed, abhorrence,for the death penalty.202 Capital punishment violated childhoodstraining and life experiences, and was antagonistic to any sense of

reverence for life.203Despite these reservations, Blackmun repeatedly upheld the death

penalty. In 1968, in Pope v. United States, Blackmun, then an Eighth Circuitjudge, criticized capital punishments pointlessness but voted to continueit.204 In a 1970 interview, Blackmun declared the matter of capitalpunishment absent from the judicial side of our [governments] threelegged stool.205

At the Furmanconference, Blackmun admitted he supported evolvingstandards, but again refused to contradict the Courts clear precedentsupholding capital punishment.206 Expressing some hesitation towardoutlawing capital punishment in treasonous acts, Blackmunacknowledged his surprise to hear nothing about the victims families

from the petitioners.207 Blackmun nevertheless reiterated his personaldistaste for the death penalty and remarked that he might one day rule

200 See LINDA GREENHOUSE,BECOMINGJUSTICE BLACKMUN33 (2005) (stating that Blackmun

personally opposed capital punishmentas an Eighth Circuit judge).201 See TINSLEY YARBROUGH,HARRY A.BLACKMUN:THE OUTSIDERJUSTICE127 (2008).202 Furman v. Georgia, 408 U.S. 238, 405 (1972) (Blackmun, J., dissenting).203 Id. at 406.204 See Pope v. United States, 372 F.2d 710, 71237 (1967). Blackmun stated Pope was an

ideal candidate for executive clemency, a remark his fellow judges criticized as gratuitous.

See GREENHOUSE, supra note 200, at 3235.

205 SeeYARBROUGH, supra note 201.206 See Brennan, supra note 132.207 Id.


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against capital sentencing.208

In his personal papers, Blackmun kept a passage by Justice FelixFrankfurter.209 Like Blackmun, Frankfurter opposed capital punishment,

but refused to impose the views of the very few states who through bitterexperience have abolished capital punishment upon all the other states. 210Blackmun admitted that he found the prospect of hundreds of executionshorrifying.211 Despite this, he maintained that ordinarily punishment,including the death penalty, is a matter for the legislature and not for thejudiciary.212

F. Chief Justice Warren E. Burger

Though less adamant than Blackmun, Burger also seemed topersonally oppose the death penalty.213 Regardless of Burgers politicalstance, he felt capital punishments administration best left to the states.

At the Furman conference, Burger stated he would restrict it [capital

punishment] . . . as a legislator.214This was reiterated in the Chief JusticesFurman dissent.215 During the 1976 conference, Burger again claimed topersonally oppose capital punishment, though he continued to uphold itsimposition.216 While Burger opposed the death penalty as a matter ofpolicy, he felt Court precedent made its imposition constitutionallypermissible. The Chief Justice remained unconvinced that capitalpunishment violated evolving standards of decency,declaring in Furmanthat state legislatures were properly in charge of capital sentencing.217

Brennans case histories also illustrate Burgers legalism. Although theChief Justice repeatedly said he personally opposed capital punishment, hedistributed a series of internal memorandums harshly criticizing the

208 He eventually did. SeeCallins v. Collins, 998 F.2d 269 (5th Cir. 1993), cert. denied510 U.S.

1145 (1994) (Blackmun, J., dissenting from denial of certiorari).209 See GREENHOUSE, supra note 200, at 162.210 Id.211 See Memorandum Nos. 203 and 204, in THE PAPERS OF JUSTICE HARRY A. BLACKMUN

(1971) (on file with the Library of Congress).212 Id.213 SeeJOHN PAUL STEVENS,FIVE CHIEFS:ASUPREME COURT MEMOIR144 (2011) (Burger . . .

who voted to uphold the constitutionality of the death penalty . . . opposed it as a matter of

policy . . . .).214 See Brennan, supra note 132.215 Furman v. Georgia, 408 U.S. 238, 375 (1972) (Burger, C.J., dissenting) (declaring that,

were he a legislator, Burger would side with Marshall and Brennan).216 See Brennan, supra note 132.217 Furman, 408 U.S.at 390 (Burger, C.J., dissenting).


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position of his more liberal brethren.218 The Chief Justice explicitlychastised them for allowing attitudinal inclinations to influence theirjurisprudence, (implicitly) urging them to act like he did.

G. Justice William H. Rehnquist

Although Justice Rehnquist personally supported the death penalty, itis difficult to determine how this affected his jurisprudence. Clearer is thatRehnquist was relatively uninterested in the issue and was glad to writehis opinions and move on to other cases.

Justice Rehnquist rarely addressed the matter of capital punishment.As a law clerk to Justice Robert Jackson, Rehnquist opined that convictedsaboteurs Julius and Ethel Rosenberg should be drawn and quartered,and (supposedly) lamented this penaltys historical abolition.219 WhetherRehnquist meant this sincerely or provocatively is hard to say.

During the Furman conference, Rehnquist argued the Court had

resolved this issue in McGautha by finding capital sentencing standardsconstitutionally unnecessary.220Yet his next statement was attitudinal: If itis a good law, I will follow it. As a legislator, I would keep it. I am not tornby the problem and I affirm.221 In his Furman dissent, Rehnquist faultedthe majority for acting like a roving commission,strik[ing] down lawsthey had no constitutional role in addressing.222While Rehnquist spoke inlegalistic terms, this decision may thus have been attitudinallyinfluenced.223

During the 1976 conference, Rehnquist gave no indication of hisfeelings, and immediately passed his turn to the newly arrived JusticeStevens.224 Justice Rehnquists personal archives make no mention ofcapital punishment.225 Brennans case histories on Furman reference

Rehnquist only once, stating that [n]o one had any illusions about where

218 See Warren E. Burger, Memorandum to the Conference, Re: Capital Cases, in THE

PAPERS OFJUSTICE WILLIAM O.DOUGLAS(April 1972) (on file with the Library of Congress).219 See EDWARD LAZARUS, CLOSED CHAMBERS:THE RISE,FALL,AND FUTURE OF THE MODERN

SUPREME COURT 140 (1998).220 MANDERY,supra note 4, at 170.221 Id.222 See Furman, 408 U.S. at 467 (Rehnquist, J., dissenting).223 It is difficult to tell whether someone is acting attitudinally when the law is in line with

his or her personal opinion.

224 See Brennan, supra note 132.225 See REGISTER OF WILLIAM H. REHNQUIST PAPERS, HOOVER INST. ARCHIVES (2008),

http://pdf.oac.cdlib.org/pdf/hoover/rehnquis.pdf (making no reference to capital punishment).


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Interestingly, interviews reveal that Brennans Furman opinion wasoriginally written for Justice Stewart. According to former Stewart clerkBen Heineman, Jr.:

It took me months to write this opinion, and it was eventuallyrejected by Stewart (for declaring retribution an illegitimate

justification for capital punishment). Brennans clerks asked mefor this opinion, and I gave it to them. They said Brennan liked itand asked if they could use it, and it was submitted as Brennan sopinion in Furman.233

Brennans reliance on a pre-written argument suggests that hismotivations in Furman and Greggrested less on a reasoned analysis of theEighth Amendment than ideological opposition to the death penalty.Principle came first and (legal) justifications later.

I. Justice Thurgood Marshall

Justice Marshall acted attitudinally in the Gregg cases. Like Brennan,Marshalls antipathy for the death penalty determined his legal oppositionto it.

Marshall did not always legally oppose capital punishment,occasionally voting to uphold death sentences as a Second Circuit judge.234Shortly after joining the Supreme Court, however, he became a firmopponent of the death penalty.235Marshall was most likely influenced byJustice Brennan, who believed the Court had a unique duty as adefendants last line of appeal.236 Marshall once told a reporter that youcant un-ring a bell to not kill a person if you find out someoneexecuted was innocent; When you kill him, hes gone.237

Justice Marshalls opinions in the Furman and Gregg casesreflected his

strong opposition to capital punishment. Marshall believed the deathpenaltys violation of contemporary standards of decency required theCourt to involve itself in legislative affairs, or it risked abdicating its role as

233 See Heineman, supranote 135.234 See JUAN WILLIAMS, THURGOOD MARSHALL: AMERICAN REVOLUTIONARY 351 (1998).

Williams suggests two reasons for Marshalls early (legalistic) support of the death penalty.

First, Marshall was skeptical of the judiciary s ability to effectively implement social change.

Second, and perhaps more influentially, Marshall had little tolerance for street criminals. See

MANDERY, supranote 4, at 137. He once remarked to a law clerk, I hate the death penalty. But

I also hate the bastards who escape because we don t use the death penalty.Id.

235 See MANDERY, supra note 4, at 137.236 Id. at 141.237 See WILLIAMS, supra note 234.


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the ultimate arbiter of the Constitution.238 Marshall stated thatsupporting the death penalty was even irrational, as no educated,enlightened individual would allow purposeless vengeance.239

In interviews, Marshall discussed the origins of his aversion to thedeath penalty. Marshall had defended numerous African-Americanssentenced to death as an NAACP lawyer.240 One of these clients was aformer high school classmate of his. When Marshall failed to halt hisexecution, the rising lawyer took this to heart. Asked whether this eventaffected both his political and constitutional stance toward capitalpunishment, Marshall responded, It did. It did because I lost the deathpenalty case in private practice.241When another journalist asked Marshallif he would reject the death penalty even for the murderer of his loved one,the Justice immediately replied, Thats right.242Marshall made clear thaton something like that [the death penalty], you can t give up and youcant compromise. Its so morally correct, I wouldnt think of giving it

up.243

A Marshall clerk confirms that his former boss saw the Furman andGregg cases as political.244 According to this clerk, for Marshall, therewere cases he cared about and ones he didnt, and for those he cared abouthe knew his stance.245 Marshalls jurisprudence was fundamentallyattitudinal. He was interested in how he voted and what the outcomeswereit had to represent his views. Marshall wasnt intellectually engagedin the work of the Court except for a few cases that he passionately caredabout.246Marshalls clerks often knew what to write without their bosssinstructions, and they gave capital cases the highest priority.247

238 See Furman v. Georgia, 408 U.S. 238, 259 (1972).239 See id. at 363.240 See MICHAEL D. DAVIS & HUNTER R. CLARK, THURGOOD MARSHALL: WARRIOR AT THE

BAR,REBEL AT THE BENCH320 (1987) (surveying Marshalls legal career and his representation

of African-American defendants).241 Id.242 See WILLIAMS, supra note 234, at 360.243 THE BURGER COURT:POLITICAL ANDJUDICIAL PROFILES 224 (Charles M. Lamb & Stephen

C. Halpern eds., 1991).244 Interview with Anonymous, Former Law Clerk to Assoc. Justice Thurgood Mars

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