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Capital Punishment and Popular Constitutionalism

I recently led classroom discussions on the Supreme Court’s death penalty rulings in Furman and Gregg. Unsurprisingly, my students weren’t impressed with Furman’s mélange of concurrences supporting (for different reasons) the per curiam holding that the capital sentencing in the case was cruel and unusual. In general, students are drawn to absolutes and decisiveness. They want exceptionless rules, unambiguous standards, and, all in all, an ordered universe of constitutional law. To their minds, Furman is a muddle, and Gregg’s clarification of its reasoning is scant improvement. Even when my students can’t agree on the morality or constitutionality of the death penalty, they want the Supreme Court to issue a decisive statement on the latter count (or perhaps both counts).

I think that my students have the bulk of academic opinion on their side – at least insofar as they don’t read these as “great cases.” If you think that the job of the Supreme Court is to serve as a “forum of principle,” you’re likely to be disenchanted by the diversity of opinions and the contradictory reasoning across the concurrences and dissents. If you think that the Court should be clear in describing to the nation what the content of constitutional law is, you’re likely to be distressed by the justices' decision to issue a per curiam opinion unsupported by reasoning that can have robust authority as precedent. If you share Justice Roberts’s purported desire for consensus on the Court, you’re likely to be dismayed by a 5-4 split and, more damningly, a serious split within the majority, between the two justices (Brennan and Marhsall) who think the death penalty is unconstitutional per se and the three who don’t (Douglas, White, and Stewart, who would write for the Court in Gregg). And if you think that the Court is an apolitical body you might be disheartened that justices in both the majority and the minority pay a great deal of attention to (what they take to be) the state of public opinion with respect to capital punishment.

Did the Court stray its brief in its death penalty cases? Should it have refused cert? Or, as many of my students argued, should it have sought to impose a nationwide standard for capital punishment, whether thumbs up or down? I’m not so sure. I think popular constitutionalists have to consider seriously the possibility that cases like Furman and Gregg exhibit just the kind of judicial behavior they want. In both cases you see the justices struggling to reconcile the different modalities of constitutional interpretation – text, history, political development, principle – while at the same time refraining from dictating a one-size-fits-all solution for the country as a whole. The justices certainly could have done a much better job – it’s hard to see how the clarifications of Furman in Gregg really make much more sense, and there’s a tension, between Stewart’s concept of “human dignity” and his endorsement of the use of character-based factors in capital sentencing, that’s hard to resolve – but they could have done worse. I don’t see why the state should have the power to kill, and I have even less confidence in the way that power has been used in this country; but I find it hard to fault the interpretive posture of the justices in these cases. A more assertive Court might very well have required the states to have the death penalty, rather than leaving the matter up to the states themselves; and our experience with judicial supremacy in the twentieth century is that when the Court does decisively intervene in policy, the results can be very hard to change or undo.