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9. What the Law Students Set in Motion
- The University of Tennessee Press
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Chapter 9 What the Law Students Set in Motion For days the news agencies laid siege to the Supreme Court building in Washington, D.C. Reporters camped outside, waiting for any announcements . Finally, Thursday, June 29, 1972, arrived, the last day that the court would convene for its 1971–72 term.1 Attorneys, litigants, the press, and members of the public packed the gallery,2 awaiting with anticipation the arrival of the justices. Finally, at about 10 a.m., the marshal announced , “Oyez! Oyez!” and the nine robed men stepped from behind the curtains to take their seats. Chief Justice Burger, in his deep-toned, sonorous voice, read the namesofeachcaseonthedocketandabriefrecitationofthecourt’sholding . It was only a matter of moments before he arrived at the FurmanBranch -Jackson matters. After reciting the nature of the convictions and the sentence of death given by the juries, he tersely pronounced: Certiorari was granted limited to the following question : Does the imposition and carrying out of the death penalty . . . constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments? The Court holds that the imposition and carrying out of the death penalty in these cases constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. The judgment in each case is therefore reversed insofar as it leaves the death sentence imposed, and the cases are remanded for further proceedings.3 126 What the Law Students Set in Motion Audible gasps could be heard from beyond the bench. Shock waves of disbelief rippled through those in the audience who knew of the cases and what they meant. As quickly and surreptitiously as possible, lawyers and the press corps slipped out of the courtroom to report what they just heard and to read the per curium decision. But instead of one opinion with a dissent or two, they discovered nine separate opinions—a highly unusual occurrence. None could agree on identical bases for their decisions . The nine opinions, including those of the four dissenters, were spread over 243 pages or about 50,000 words. The sheer volume of the opinions made the Furman decision the longest ever issued to that time.4 Differing Reasons The wire services broadcast the story within minutes.5 One day later, on June 30, 1972, the New York Times published an article carrying differing public reactions. Lucius Jackson, one of the rape defendants, said, “I’ve been thinking of death for a long time. Now I can think about life.”6 Governor Ronald Reagan of California predicted passage of a November initiative to restore capital punishment for “cold-blooded, premeditated, plannedmurder.”7 PresidentNixonstatedhishopethatthedeathpenalty would still be reserved for kidnappers and hijackers. Governor Jimmy Carter muted his criticism. He opined that someone convicted of premeditated murder should serve more than a term of years and that “this decision clears the way for us to re-examine all our laws in Georgia.”8 Some were elated. Jack Greenberg, director of the Fund, predicted “there will no longer be any more capital punishment in America.”9 Governor Dan Evans of Washington said, “States that have the death penalty have not had less crime than those states that have not had it.”10 Earnest Lee Herron, on Death Row in Tennessee, said the decision would help “the poor and the black man.”11 Tony Amsterdam was driving along a freeway near San Francisco when he heard the terse radio announcement. Instantly he was in shock and had to pull to the side of the road, overcome by waves of emotion. He later reported: “I felt free for the first time in years. I thought, ‘That job is done. Those guys live.’”12 Michael Meltsner, by then a Columbia Law School professor, was editing a brief at the kitchen table of a vacation house on Cape Ann, Massachusetts, when he heard the news on the radio. His nine-year-old daughter, Jessie, was lying on a couch across the room deep in a book when she spied her father in tears. [44.202.209.105] Project MUSE (2024-03-29 07:15 GMT) What the Law Students Set in Motion 127 The Dissecting Begins What had happened? Lawyers from across the country pored over the printed words trying to see whether there was a common thread of logic binding the majority vote together, whether the death penalty was banned for all crimes, and whether it could be revived by future legislation or initiatives tailored to the court’s dictates.13 Reading the...