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Chapter 8 The High Court Acts Whether or not Justice Hugo Black believed in the efficacy of the death penalty, he was sure that neither the Constitution’s promise of equal protection of the laws nor the Eighth Amendment’s ban on cruel and unusual punishments abolished it. To Black, arguments against capital punishment boiled down to claims of unfairness, and his entire career had been set against giving judges the discretion to define constitutional protections on this basis. Following the court’s McGautha decision,1 Black believed that a Supreme Court holding that death sentencing was not cruel and unusual would leave its fate forever “in the hands of the [state] legislatures,” where he thought it belonged.2 Chief Justice Warren Burger, a death penalty proponent, liked the idea, and with Black’s encouragement suggested that “four clean cases” be picked for review. He and Black probably had in mind four cases where the hideous facts of the murders and rapes demanded the ultimate penalty. Black’s encouragement was well timed. Since 1967 stays and postponements of execution for most of the inmates on Death Row had been granted while the death penalty’s fate was awaiting constitutional resolution. By 1971 the backlog of executions had grown so large that some feared a “bloodbath” once the moratorium was lifted. The Supreme Court was under intense public pressure to do something and with a court shifting to a more conservative bent, Black was confident of victory. If Black was confident, Justice William Brennan was worried. He feared the effects of a public outcry over the rising crime rate and civil unrest. After a decade of decline, the popularity of capital punishment had recently surged,3 probably because changing the death penalty from 110 The High Court Acts an almost invisible issue to a center-stage political controversy stoked anxiety that the criminal law had become too permissive. Brennan thought McGautha a dangerous precedent: without standards to guide predominantly white juries in the South, the defendant’s race would continue to determine who would live and who would die. But Brennan had one advantage. He was a master tactician, and he went to work. With Justice Potter Stewart’s assent, he suggested that he and Stewart be assigned to find the “four clean cases.” Burger agreed,4 probably assured that Potter Stewart would keep Brennan in check. Burger, of course, was aware of Brennan’s close ties to the former chief justice, Earl Warren, and of his dissenting opinion in McGautha. What Burger may have undervalued was the extent of Brennan’s wiles and convincing ways. He had been on the court since 1956. To those who knew him, he was the “great conciliator” and “coalition builder.”5 Thurgood Marshall once opined that no other justice could “persuade the way Brennan can persuade.”6 Brennan also put his law clerks to work, encouraging them to befriend “the other clerks to find out what their Justices are thinking.” Once he knew the thoughts and leanings of his brethren, he went about trying to dissuade or persuade, not by buttonholing but by the sheer force of his logic. Brennan had the ability, according to Marshall, to “sit down with you and talk to you and show you where you’re wrong.” Warren had recognized Brennan for his intellectual firepower, resolve, and industry.7 No one worked harder on the court. Brennan’s personal qualities aided his persuasiveness. Small in stature (“leprechaun-like”),8 he took a delight in all those he met, and spoke warmly of his adversaries. Brennan, of course, downplayed his abilities . He did not claim victory or credit. Frequently he would write letters to his fellow justices attempting to explain his views on pending cases. He avoided confrontations and preferred to carefully craft his suggested changes in writing.9 According to Warren, Brennan had a particularly strong influence on Potter Stewart and credited him with holding Stewart’s vote for the majority in the great redistricting case of Baker v. Carr.10 That strong influence would become critical once again in forming a new majority on the death penalty issue. Brennan, with Stewart’s acquiescence, culled through the numerous Death Row petitions and found a package of four cases he thought Burger and Black would agree to review. All involved black defendants11 and white victims. Three cases came from the South. In two of those three, black defendants had been convicted of raping white women. [18.221.222.47] Project...

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