To the dismay of many, the approbation of others, and the undeniability of one and all, the justices of the United States Supreme Court have regularly been taxed with untangling some of the most exquisitely complicated and morally ambiguous issues of consequence to Americans and their governance. Should a woman be allowed to terminate her pregnancy through elective abortion? Is an individual who desires to end life on his or her own terms—to “die with dignity” rather than succumb to the ravages of disease or infirmities of advanced age—entitled to secure a lethal prescription from a physician and with that assistance commit suicide? May two men or two women—consenting adults—be criminally prosecuted for engaging in sexual intimacy in the privacy of their home? Can a government require citizens of sufficient economic means to secure health insurance or else suffer monetary penalty?
At or near the top of the list of politically and ethically supercharged issues that now bear the mantle of a question of constitutional law is: Should government be allowed to exact an offender’s life as punishment for crime?
A Wild Justice: The Death and Resurrection of Capital Punishment in America, by Evan J. Mandery, a Professor at the John Jay College of Criminal Justice and a graduate of Harvard Law School, probes the mysterious inner workings of the nation’s most powerful judicial tribunal—the United States Supreme Court—as its presiding justices plumb the virtually limitless depths of one of the nation’s oldest enduring controversies—the legitimacy of capital punishment.
With very limited exceptions, largely concerning how death sentences were carried out (e.g., by firing squad or use of the electric chair), debates about capital punishment throughout nearly all of the first two centuries of this country’s history took place outside of courthouses. They centered on differences of religion, morality, penology, politics (and, less explicitly, attitudes about race) rather than points of law. As described in A Wild Justice, the nascence of the death penalty as a constitutional issue, and thus a matter residing first and foremost within the Supreme Court’s domain, traces to 1963 and the collaboration of Justice Arthur Goldberg and his law clerk, Alan Dershowitz, who later joined the faculty of Harvard Law School where he cemented his reputation as a champion of civil liberties. Goldberg, ironically, left the Supreme Court after serving only three years to become the U.S. Ambassador to the United Nations. Their thinking bore fruit in the form of a short and distinctly unusual opinion—Goldberg’s dissent from the Court’s decision to deny certiorari (a refusal to review a lower court decision)—in Rudolph v. Alabama, a case in which a black man had been sentenced to death for raping a white woman. This brief opinion, joined by Justices Douglas and Brennan, presented a vastly scaled down argument of Goldberg’s insight that capital punishment, at least when imposed “on a convicted rapist who has neither taken nor endangered life,” could be challenged as inconsistent with the Eighth Amendment’s prohibition against cruel and unusual punishments.
The publication of this opinion, which was intended to serve as a signal, if not an invitation to the legal community that at least some members of the Court would be receptive to considering a constitutional challenge to capital punishment, had its desired effect. Attorneys working with the NAACP Legal Defense Fund (LDF) took note. Issues of race were so firmly intertwined with the death penalty that the LDF, which had for years pursued redress in the courts on matters of racial discrimination in many other contexts, seized the reins and commenced an epic legal assault on capital punishment.
Based on interviews and documentary sources, Mandery penetrates the offices as well as the minds of the band of LDF attorneys as they waged legal warfare against the death penalty. He eloquently recounts what he learned from his research in the pages of A Wild Justice. The volume engagingly describes how the LDF effort was conceptualized and spearheaded by Professor Anthony Amsterdam, whose incomparable intellect and work ethic resonate in every written brief and oral argument throughout the extended Supreme Court litigation.
A Wild Justice also peers into previously unexposed recesses of Supreme Court decision making and the fascinating personalities and interpersonal relationships of the justices as they alternatively handed victory to the LDF by invalidating capital punishment as it was then administered in the landmark case of Furman v. Georgia (1972), and then four years later dealt it a crushing defeat by authorizing the states to carry out death sentences imposed under revised, “guided discretion” capital sentencing statutes. Mandery interviewed several of the justices’ former law clerks to gain these insights, a momentous accomplishment which results in making the law and its arcane processes come alive in ways vastly different from what is revealed in the contents of any casebook of judicial decisions. Among the reported internal dynamics is a late agreement reached by Justices Potter Stewart and Byron White that dramatically altered the resolution of Furman, and also rippled inexorably forward as the Court shaped and reshaped its death penalty jurisprudence in later cases.
A Wild Justice shadows the litigants and the Supreme Court justices through the explosive aftermath of Furman and its invalidation of capital punishment laws until a new equilibrium was established in 1976. In a series of cases decided that year, the justices upheld the constitutionality (by vote of 7-2) of the states’ revised, guided discretion death penalty laws, and ruled unconstitutional (by vote of 5-4) revised statutes enacted in some states that automatically imposed capital punishment on offenders convicted of qualifying crimes.
The book provides unparalleled insights into the workings of the Supreme Court and the often wildly unpredictable and clandestine underpinnings of rules of law that eventually emerge in far tidier terms in the justices’ written opinions. It is rich with revelations, intrigue, and scholarly perspective about the law and politics of capital punishment. A Wild Justice pays many handsome dividends in the reading.