Supreme Court Archives - Not Even Past

Historians on Marriage and Sexuality in the United States

People celebrate the Obergefell vs Hodges decision in front of the Supreme Court in 2015 (Ted Eytan, via Flickr)

In June 2015, by a vote of 5 to 4, the Supreme Court of the United States resolved decades of debate by declaring marriage a fundamental right regardless of sexual orientation. The Obergefell v. Hodges decision changed the landscape of American marriage law, but what was this landscape in the first place? Two historians of marriage and sexuality in the United States have spent decades taking on that very question. Nancy Cott and George Chauncey have both participated in recent history as expert witnesses, amicus curiae (friend of the court) brief writers, and eminent scholars analyzing marriage and homosexuality. They show us how incorrect we often are when we think of these histories in the United States. These historians have made history a friend to the court as much as any lobbyist or interest group.

Nancy Cott’s Public Vows: A History of Marriage and the Nation lays out centuries of marriage law in the United States. Far from the moral absolute marked by religious teachings that many might assume marriage was, it is a complicated and shifting concept in the history of the Western world. Cott points out that marriage has a national concern that secular governments legislate in order to create the best “civic units” out of the family. Society became concerned with civic character and then tried to improve these norms by engineering a certain type of family. The common practice of unofficial divorce and separation led to a formal legal process for divorces just as much as the legal definition led to formal divorces. We are accustomed to thinking of these everyday things as defined from above, yet our community practices often find their way into law as often as the other way around.

The history of marriage in the United States certainly does not have the kind of unchanging moral character that many opponents to marriage equality claim. “Traditional” families are constantly changing. Two centuries ago, the most important people in deciding a match may well have been the community in which the couple lived. Small rural towns had a deep interest and broad powers in marital arrangements. Cott’s book is full of such examples of unofficial activities that reflected community interests, not the interests of the individuals involved. Marriage today is much more of an individual choice based on one’s own expectations from life, even if still affected by an idea of “normalcy” and pressures to fit into a family, a faith, or some other kind of community. Ultimately, the majority of Americans are free to marry outside of their “tribe,” because whatever social costs that are associated are considerably lower. Similarly, marriage was limited to “consenting” and “free” individuals. This meant that slaves were barred from this institution while also condemned as immoral for engaging in extramarital intercourse; a key aspect of reconstruction was the construction of ex-slave marriage. If marriage is an ever-changing reality, why shouldn’t the court consider homosexuals simply another kind of marriage?

Marriage may be a concept in flux, but what about homosexuality? Today we identify people with their sexual orientation, but was that the case in the past? Many assume that throughout history, these communities were wholly underground — persecuted and kept hidden by families ashamed of their “perverse” siblings. But George Chauncey, along with a wide field of historians, have helped us to reconsider. Rather than being a gay or a lesbian, often individuals engaged in various kinds of sexual behaviors. In fact, Chauncey’s ground-breaking book, Gay New York: Gender, Urban Culture, and the Making of the Gay Male World, 1890-1940, outlined how urban men who participated in homosexual behaviors often considered themselves to be “normal,” that is, not defined by their same-sex intercourse, as long as they played the “active” role in intercourse. Those men engaging in the “passive” role in intercourse were seen from the outside as primarily a public nuisance on par with prostitution (which they often engaged in). The homosexual subculture of turn-of-the-century New York was visible and defined by specific kinds of sexual activities, not necessarily nature-born identities. In fact, the words we use today, such as “gay,” “lesbian,” and likely even “homosexual” would not have been known by the vast majority of people.

Twelve years before Obergefell, the Supreme Court laid the groundwork for this legal breakthrough. The June 2003 case, Lawrence v. Texas, challenged and then overturned what were commonly known as “sodomy laws” that declared sodomy illegal. Much of the debate surrounding these laws considered them to be expressions of long-standing morals; an accepted societal conclusion that homosexuality itself was illegal. However, Chauncey’s amicus curiae brief (with input from a number of historians) decimated this belief by pointing out that “sodomy” itself was a dubious term that had shifted throughout history. He pointed out for example that famed thirteenth-century theologian Thomas Aquinas considered every sexual act that was not direct penetrative vaginal sex to be sodomy. He also explained that the history of sexuality shows that these “morals” were recent inventions and historically changeable. His brief was specifically quoted by Justice Anthony Kennedy, the swing vote, whose opinion overturned decades of legal persecution.

Historians have much to teach, but not only to students. Society is improved by their scholarship, often because our collective memories are too short and our ability to see past our biases and preconceptions is often lacking.

Historical Perspectives on Marshall (dir: Reginal Hudlin, 2017)

By Luritta DuBois

When Hollywood media websites announced Chadwick Boseman would portray Thurgood Marshall in December 2015, people immediately slammed director Reginald Hudlin’s choice to select an actor who did not share Marshall’s phenotype. Boseman is brown skinned with 4b hair, while Thurgood Marshall was light skinned and had a 3b curl pattern. Those vast differences, the critics held, rendered the movie inauthentic because Thurgood Marshall benefited from light skinned privilege his entire life. Some even thought Boseman’s slender physique made him the wrong choice. I chuckled at that observation knowing that a glance at the movie’s synopsis and a Google image search would have easily cleared up their confusion. All jokes aside, I initially reacted to the news with curiosity and not disdain. I wanted to know whether a filmmaker could truthfully tell Marshall’s story without focusing on how colorism worked in his favor. In order to give a fair response to this question, I examined a variety of materials: a summary of the film; Chadwick Boseman’s interview on Jimmy Kimmel Live! (air date June 21, 2017), biographies Devil in the Grove by Gilbert King and Thurgood Marshall: American Revolutionary by Juan Williams; and the movie Marshall. I decided the scope of the film made such an undertaking possible.

The debate over light skin privilege stems from a practice common in the United States known as colorism, a form of discrimination in which people are treated differently based on the social meanings attached to skin color. This type of behavior is manifested in the preferential treatment given to African Americans who physically approximate whiteness. For example, in the early 20^th century, brown paper bag and blue vein tests constituted an integral part of the application process for some Black institutions and organizations (i.e., universities, sororities, and fraternities) that afforded members opportunities to improve their social-economic situation. The ideal candidate had the following physical features: lighter than or the same color as a brown paper bag and visible veins because of light skin. People censuring Boseman’s casting most harshly argue that the color caste in America enabled Thurgood Marshall to accomplish important milestones like earning a law degree from Howard University, being a successful NAACP litigator (Marshall won 29 out of the 32 cases he tried before the Supreme Court), and becoming the first African American Supreme Court Justice.

While the complexion critique is valid, one cannot reduce Thurgood Marshall’s life to benefiting from light skin privilege. Devil in the Grove and Thurgood Marshall: American Revolutionary show there were limitations to his color entitlements, the most striking example being Marshall’s attempted lynching in Columbia, Tennessee. In 1946, the NAACP sent Marshall to Columbia to defend two African American men accused of rioting and attempting to murder white law enforcement officers (Zephaniah Alexander Looby and Maurice Weaver served as co-counselors). Following their acquittal, an angry group of local whites, including some police officers, apprehended Marshall and his colleagues, but chose to lynch Marshall instead of the dark skinned Looby and Weaver, who was white. Fortunately for the Civil Rights icon, Looby’s protestations and the sound reasoning of a local magistrate stopped Marshall’s execution. This incident was one of many where Marshall’s French Vanilla hue could not protect him from experiencing the racial violence (real and threatened) and discrimination that come with being Black in America.

Thurgood Marshall in 1957 (via Library of Congress)

Since Marshall focuses on the areas in Thurgood Marshall’s life where colorism played an insignificant role, casting a dark-skinned actor does not dilute the story. The movie introduces us to Marshall’s personality, provides a glimpse into how he executed his legal genius, and sheds light on the challenges he faced as a Black lawyer. In exploring those aspects of Marshall’s life, the movie’s objective is not to deify him, but to bring him down to earth and capture his essence when he was a young lawyer for the NAACP. The viewer sees this in a story centered on one criminal case he and Connecticut based attorney Samuel Friedman tried in 1941. The previous year, white Greenwich socialite Eleanor Strubing accused her Black American chauffeur and butler, Joseph Spell, of rape. She also claimed he attempted to kill her by throwing her into the Kensico Reservoir. The NAACP took on the case not only to ensure an innocent man received a fair trial, but also to protect other African American domestic workers in Connecticut. After Strubing’s allegations, the NAACP heard rumors of Northern white families firing their servants because they feared the presence of a sexual predator in their home. Given that domestic labor was the main source of income for African Americans in Connecticut, the NAACP felt compelled to prove Spell’s innocence. Lastly, high profile criminal cases expanded the organization’s membership and increased funding, which the NAACP needed in the early 1940s.

Although Marshall, like all Hollywood films based on historical events, took a few liberties, the Associated Press noted that the movie was, for the most part, faithful to the facts. This is especially true when it comes to the film’s depiction of Thurgood Marshall’s character, his skills as a litigator, and the hardships he endured. Gilbert King and Juan Williams describe him as folksy, charming, and always laughing. Looking at Marshall’s fondness for joking, King recounts a time when, after a legal victory, he opened a bottle of whiskey in the NAACP’s headquarters and amused his co-workers with impersonations of judges, opposing counsel, and dimwitted “uncle Tom” witnesses. In the movie, he is unpretentious and alluring in his interactions with everyone from the Connecticut Black family who hosted him to a woman he met in a local bar. Screenwriters Michael Koskoff and Jacob Koskoff (father and son) and director Reginald Hudlin also showcase Marshall’s comical side in the scenes where Sam Friedman picks him up from the Bridgeport train station and when both approached an angry group of whites in front of the courthouse. At the train station, Marshall asked Friedman to carry his luggage. Upon picking them up, the latter inquired if the suitcases contained cement because of their weight. Marshall, whose back is facing Friedman, answers “guns” with a devilish smile. He quickly ended the prank and assured his co-counselor that the luggage only had law books. Once the trial started, a mob who supported Mrs. Strubing greeted Marshall and Friedman, who was Jewish, with posters that had racist caricatures of them. Marshall walks up to a person holding a sign, turns to Friedman with a smirk and replies, “that doesn’t look anything like me, does it?”

Thurgood Marshall and other members of the N.A.A.C.P. legal defense team who worked on the Brown v. Board of Education case (via The New York Public Library)

Even though Marshall has light hearted moments, Hudlin and the Koskoffs balance the comedy with serious events. As a result, Marshall does not come across as a jester, but a layered man who could simultaneously joke about racism and use his legal expertise to diligently seek justice for wrongly accused Black Americans. The jury selection scene stands out in illuminating this quality about him. Friedman wanted to dismiss a woman because he felt the juror’s southern roots and gender made her biased towards Mrs. Strubing. Marshall, however, viewed those characteristics as unimportant. Instead he carefully examined the juror’s body language during her interview and noticed she reacted unpleasantly to Lorin Willis, the head prosecutor, but gave non-verbal signals that showed she valued Friedman’s opinions. Eventually, Marshall convinced his co-counselor to keep her and the decision boded well for them. Overall, the movie shows that it was Marshall’s keen observations of the evidence (depositions and the physical landscape where Spell allegedly tried to kill Strubing) that planted seeds of doubt in the minds of the all-white jury. You not only see the future Supreme Court Justice’s talents at work, but also an incredible amount of charisma.

Lastly, the film portrays the violence Marshall endured as a Black man on a Civil Rights crusade. In one of the opening scenes, a gang of white men fired gunshots to intimidate him as he left Hugo, Oklahoma after trying a sensational case. Later on during the Spell trial, two white men who sympathized with Eleanor Strubing assaulted him at a bar he visited to relax following a taxing day.

U.S. Supreme Court, 1976 (via Library of Congress)

Despite the effort that went into attending to the facts, Marshall is less than perfect. The main weaknesses are the underdevelopment of Marshall’s relationship with his first wife Vivian “Buster” Burey (Marshall became a widower in 1955 when she died from cancer) and the cursory glance given to Marshall’s performance in the courtroom. The viewer learns Buster had multiple miscarriages and Thurgood’s legal work kept him away from her for long periods. Since the movie aims to humanize Marshall, it could have benefited from more attention to how he and Buster coped with their fertility problems. Moreover, an in-depth depiction of Marshall’s struggle to reconcile his demanding job with his responsibilities as a husband would have given the audience a better understanding of the man behind the myth. Hudlin and the Koskoffs could have resolved the film’s second shortcoming by extending the scene where he represents W.D. Lyons, a black man coerced, through torture, into confessing he murdered a white family in Hugo, Oklahoma. In the movie, Sam Friedman talks during the Spell trial because the judge gagged Marshall. Although we see Marshall masterfully coordinate the defense’s strategy, the movie does not thoroughly show how he excelled at cross examining witnesses and presenting evidence to the jury. This was a missed opportunity: during Lyons’ case, Marshall’s skills as a trial lawyer were so great that local whites developed sympathy for the defendant and found exculpatory information for the NAACP’s lead attorney.

With all its flaws, Marshall is worth seeing. Chadwick Boseman deftly captures the spirit of Thurgood Marshall described in Gilbert King and Juan William’s biographies. Furthermore, actors Josh Gad and Sterling K. Brown give strong performances as Sam Friedman and Joseph Spell. In addition to being an enjoyable, well-acted legal drama, Marshall has value because it peels back the mythic veil surrounding Thurgood Marshall and gives viewers an introduction to the man. For those interested in Marshall’s life beyond his most noteworthy achievements, Brown v. Board of Education and becoming the first African American Supreme Court Justice, I recommend Marshall, Devil in the Grove, and Thurgood Marshall: American Revolutionary.

Hatton Sumners and the Retirement of Supreme Court Justices

We are especially pleased to post this essay by a long-time supporter of the UT Austin Department of History. Josiah M. Daniel III, of counsel at the international law firm Vinson & Elkins, LLP, received his J.D. from The University of Texas School of Law in 1978 and his master’s degree in History from UT in 1986. In 2011, Mr. Daniel was elected to membership in the prestigious American Law Institute. He is an inaugural member and former Chair of the UT History Department Visiting Committee.

By Josiah M. Daniel, III

Working this month in historical archives and observing the news of the April 10, 2017 appointment of Neil Gorsuch to replace Justice Antonin Scalia, who died in 2016, have reconfirmed for me that history (if known) can illuminate current events.

Appointments of Justices of the Supreme Court are matters of high public interest. Presidents appoint individuals for that office, with “advice and consent” of the Senate, because their nominees share the president’s views on key public issues. After all, the final word on constitutionality and interpretation of legislation and executive actions resides with the Court as part of the Constitution’s checks and balances. And, as mandated by Article III, Supreme Court justices, and all federal judges, serve lifetime appointments “during good Behaviour” with “compensation . . . not [to] be diminished during their continuance in office.”

The Supreme Court Building (via Wikimedia Commons).

Presidents are attuned to the age and health of each serving justice in anticipation of vacancy, whether by death, resignation, or retirement. On the other side, the decision of any justice of advancing years to leave office, rather than to serve until death, has often been a difficult personal choice. For the past 80 years, that decision of aging justices has been eased by an enactment sponsored by a Dallas congressman, Hatton W. Sumners (1875-1962).

Sumners’ statute, the 1937 Retirement Act, guarantees undiminished lifetime salaries to retiring justices and it authorizes them to continue in the adjudication of federal cases in the lower courts, if desired. Sumners had been appalled when, early in the Great Depression, Justice Oliver Wendell Holmes, aged 90, resigned after thirty years’ service and had his pension immediately halved in a penny-pinching measure. The Retirement Act prevented that situation but is also noteworthy because of its role in the “court-packing crisis” of 1937.

Sumners’ definitive biography remains unwritten, but he was a significant Congressman over four decades of the 20th century. In 1894 Sumners moved from Tennessee to Texas and quickly became a lawyer. In 1912 he won the at-large seat for the U.S. House of Representatives and two years later he won a seat in Dallas’ Fifth Congressional District, which he held until 1946. His papers reside in the archive of the Dallas Historical Society, where I have been reviewing them.

Congressman Hatton W. Sumners in 1938 (via Wikimedia Commons).

Sumners was devoted to his work and old fashioned in dress and speech. One woman who lobbied him in the late 1930s described him as “the epitome of the Southern conservative [who] even wore a frock coat. . . . a relic of the past.” From 1932 until he left office, Sumners chaired the House’s Judiciary Committee, a position he used, among other things, to block anti-lynching legislation based on his spurious and degrading view of African Americans. This did not prevent President William Howard Taft from calling him “the best lawyer in Congress,” or a 1939 LIFE magazine poll rating him most highly for integrity among all Congressmen (a video clip of Sumners speaking in 1937 can be found here).

Roosevelt’s first term, from 1933 to 1937, generated a surge of innovative legislation, commonly known as the “New Deal,” that tackled the deep economic and social problems of the Great Depression with innovations such as Social Security, relief for the poor and unemployed, reform of the financial system, and economic recovery.

A scene of destitution during the Great Depression (via Wikimedia Commons).

But virtually all of those new federal laws were challenged in the federal courts on constitutional grounds including the argument that the legislation violated “substantive due process,” the predominant constitutional theory typified by the famous Lochner v. New York decision of 1905 that generally vindicated private-property rights over other interests and policies.

On the Supreme Court, the “Four Horsemen,” Justices Willis Van Devanter, Pierce Butler, James Clark McReynolds, and George Sutherland, were committed to that doctrine; and, at the start of the series of overturnings of New Deal enactments in 1935 and 1936, their ages ranged from 69 to 76 (at the time, male life expectancy was 60). The newest justice, Owen Roberts, appointed by President Herbert Hoover in his final year in office, joined them frequently for the 5-4 majority in those cases. FDR was outraged and after winning reelection by a landslide in November 1936, the President announced his so-called “court-packing plan” to overcome this roadblock to his legislative agenda by increasing the Supreme Court’s membership from nine to a maximum of fifteen if justices reaching the age of 70 declined to retire.

Sumners had joined the New Deal legislative team when Roosevelt took office in 1933, but he was more conservative than the President, often seeking to steer a middle-of-the-road course on the various issues of FDR’s legislative program.

‎President Roosevelt signing New Deal legislation, 1933 (via Wikimedia Commons).

After a preview of the court-packing plan at the White House on February 5, 1937, Sumners made a pithy comment that was misquoted, then and subsequently, as “Boys, here’s where I cash in my chips,” interpreted to mean he was departing the FDR team because he disagreed with its tactics.

But as a letter in the Dallas Historical Society’s archive shows, Sumners had not spoken the last two words, “my chips,” and what he meant was “to go in and to do what I could to help straighten things out.” Sumners helped defeat FDR’s plan to pack the Court with more progressive justices; but in the same letter, written after the defeat of the plan, he added that in the future “it will be generally agreed that I have been able in this matter to render a service of value to the President, the party, and the country, especially when considered in connection with the other legislation which I sponsored.”

That last reference was to Sumners’ efforts, prior to Roosevelt’s unveiling of the court packing plan, to accomplish the President’s desired result—the addition of new, more progressive members to the Supreme Court—by other paths. On one hand, he was close to and in communication with Van Devanter and the Chief Justice, Charles Evan Hughes, urging calm and patience about the court-packing plan.

Sumners to Charles Evans Hughes, March 22, 1937 (Sumners Papers, Dallas Historical Society, via author).

On the other hand, the congressman sponsored a bill to incentivize the older justices to retire by assuring the continuity of their salary if they were to do so. On January 11, 1937, he had introduced H.R. 2518:

Justices of the Supreme Court are hereby granted the same rights and privileges with regard to retiring, instead of resigning, granted to [all other federal] judges . . ., and the President shall be authorized to appoint a successor to any such Justice of the Supreme Court so retiring from regular active service on the bench, but such Justice . . . so retired may nevertheless be . . . authorized to perform such judicial duties, in any judicial circuit . . . as such retired Justice may be willing to undertake.

Sumners’ bill sailed through Congress, and on March 1, 1937, the President signed it into law.

H.R. 2518, enacted as Public Law No. 10, codified at 28 U.S.C. § 375 (via Legisworks).

The court-packing plan was defeated in the Senate, 70-20, on July 22. Most historians credit the defeat, not to Sumners’ Retirement Act, but to the “Switch in Time that Saved Nine.” That is, the youngest justice on the court, Owen Roberts, who had been voting with the Four Horsemen in those 5-4 reversals of first-term New Deal programs, suddenly voted to sustain the constitutionality of the minimum wage law in a decision issued by the Court on March 29, 1937. Commentators have noted, for instance, that Roberts cast his vote in that case before the advent of the court-packing plan, and some have perceived a jurisprudential shift already underway.

But the most recent scholarship substantially credits Sumners, who obtained an initial draft of the Retirement Act from FDR’s team, for pushing it through quickly, which did in fact induce several rather quick retirements. These retirements gave Roosevelt vacancies to fill, assuring the survival of New Deal legislation and enabling FDR to shape the Court for a long time.

Justice Van Devanter on his last day before retirement, with Chief Justice Charles Evans Hughes (via Wikimedia Commons).

First, Justice Van Devanter took advantage of Sumners’ enactment and retired on June 2, 1937 at age 78, which vacancy FDR filled with one of most consequential justices of the twentieth century, Justice Hugo Black. Then Justice Sutherland retired on January 17 the next year, replaced by Justice Stanley Reed.

In the decades since, only five justices have resigned, most recently Abe Fortas in 1969, but 24 have retired with the benefits of the Retirement Act. Some retired justices have elected to continue to adjudicate cases. Justice Tom Clark sat, after his 1967 retirement, in the lower courts for ten years, and more recently Justice Sandra Day O’Connor, who retired in 2006, has joined judicial panels deciding scores of cases in the Courts of Appeal in almost all federal circuits.

Today, two sitting justices are in their 80s, and one is 78. Will the Retirement Act encourage any of them to retire and provide an additional appointment opportunity for the current administration?

Sources:Hatton W. Sumners Papers, Dallas Historical Society.Elmore Whitehurst, “Hatton W. Sumners: His Life and Public Service: An Extended Biographical Sketch,” n.d., Web

William E. Leuchtenburg, The Supreme Court Reborn: The Constitutional Revolution in the Age of Roosevelt (1995)

Marian McKenna, Franklin Roosevelt and the Great Constitutional War: The Court-Packing Crisis of 1937 (2002)

Burt Solomon, FDR v. the Constitution: The Court-Packing Fight and the Triumph of Democracy (2009)

Judge Earl Glock, “Unpacking the Supreme Court: Judicial Retirement and the Road to the 1937 Court Battle,” Mar. 2017, Web

David Oshinsky on Capital Punishment

In 1972, the U.S. Supreme Court in Furman v. Georgia struck down state death penalty laws nationwide on grounds they violated the Eighth Amendment’s protection against “cruel and unusual punishment.” The 5-4 decision was extremely controversial. Each justice wrote a separate opinion; not one could be persuaded to join with another. The combined verbiage filled 232 pages, making Furman the wordiest decision the Court had ever released. And the implications were stunning. Not only were 587 men and two women immediately removed from death rows across the country and re-sentenced to life in prison, but capital punishment itself now seemed a relic of the past.

The Court’s liberal wing– William Brennan, William O. Douglas, and Thurgood Marshall— portrayed the death penalty as a barbaric punishment, employed almost exclusively against poor and minority defendants, which violated the nation’s evolving standards of decency. The more conservative justices— Nixon appointees Harry Blackmun, Warren Burger, Lewis Powell, and William Rehnquist— strongly disagreed. Each pursued a different line of argument, noting, for example, that capital punishment had been endorsed by the Founding Fathers, that it enjoyed wide support among the American people, and that it was meant to be decided in the state legislatures, not by nine unelected men in Washington. That left the two centrist justices—Potter Stewart and Byron White— to determine the outcome.

Both men believed the death penalty to be morally and legally defensible, yet both were troubled by its use. The issue wasn’t prejudice or evolving standards or original intent, they argued; it was the arbitrary and capricious method in which the punishment had been applied. The death penalty was cruel and unusual, said Stewart, “in the same way that being struck by lightning is cruel and unusual…. The Eighth Amendment cannot tolerate the infliction of a death sentence… so wantonly and freakishly imposed.”

Stewart had a point. Every year, more than 20,000 Americans are murdered. Of those arrested for these crimes, about half make a plea bargain or are found guilty at trial. Only a few hundred actually receive the death penalty, many of whom are then spared upon appeal. Such a system—about 100 executions for every 20,000 murders— raises obvious doubts about the effectiveness of deterrence and retribution. More important, it leads one to ask: Who, exactly, is chosen to die? Can we honestly say that the few defendants we execute have committed more horrible crimes than the thousands of defendants who receive prison terms? And if not, is it possible to create the kind of guidelines that will sort out the truly deserving offenders?

Furman had left the door slightly ajar. By deciding that capital punishment as currently practiced was unconstitutional, the justices had implicitly invited the individual states to rewrite their death penalty statutes in a manner that did not violate the Eighth Amendment. But no one on the Court expected this to occur. As Chief Justice Burger remarked privately to friends, “There will never be another execution in this country.” So, what happened?

Quite a lot, it turned out. In Capital Punishment on Trial, I look at the social and political landscape of the 1970s— the rise in urban crime, the cries for “law and order,” popular culture’s embrace of vigilante action, from “Death Wish” to “Dirty Harry.” In short order, the removal of the death penalty by “bleeding-heart judges” became part of the angry debate over why America’s streets had become more unsafe, and what could be done to fix the problem. Politicians promised a tougher stand on crime, leading numerous state legislatures to rewrite their death penalty statutes—the key new provisions being a bifurcated trial with a separate punishment phase in which “aggravating” and mitigating” circumstances could be weighed; and a clearer definition of what constituted a capital crime.

In 1976, the Supreme Court in Gregg v. Georgia upheld the new death penalty statutes in Florida, Georgia, and Texas, ruling that they provided capital juries with sufficient guidance and discretion. Other states quickly followed suit. Meanwhile, the Supreme Court moved cautiously on the death penalty, carefully narrowing its scope while avoiding the issue of abolition— ruling, for example, that those under eighteen and the mentally retarded cannot be executed, nor can those convicted of crimes, such as rape in which a life is not taken. No issue over the years has been more difficult or contentious for the individual justices than this one. And no issue has demanded more of their time.

Today, as in the past, Americans support capital punishment in overwhelming numbers, according to public opinion polls, despite a stream of reports that portray the system as racially biased, weighted against the poor, expensive to maintain, and prone to wrongful convictions. The issue strikes so powerfully because of the combustible elements it contains– elements of morality and justice, on the one hand, punishment and vengeance, on the other. The future of capital punishment is difficult to predict, especially in the post-9/11 world. At the moment, however, one thing is clear. For a majority of Americans, some crimes are simply too heinous to be punished by anything less than death.

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