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4.2.12
WC: 191694

The strategy was simple in outline: The Supreme Court should not be allowed the luxury of deciding the issue of capital punishment as an abstraction; instead, it must be confronted with the concrete responsibility of determining the immediate fates of many hundreds of condemned persons at the same time. In this way, the Court could not evade the issue, or lightly refuse to decide it if the Court’s refusal would result in the specter of mass executions of hundreds of convicts. However, the Court could decline to decide the ultimate issue — the constitutionality of capital punishment — if in doing so it could find some other way of keeping alive those on death row. And the legal team always provided the Court with this other way — a narrower issue, usually in the form of an irregularity in the procedure by which the death penalty was imposed or administered.

Pursuant to this strategy, the Supreme Court decided a number of cases involving the administration of the death penalty; in each of these cases the Court declined to consider the ultimate issue, but it always ruled in favor of the doomed, thereby sparing their lives — at least for the moment. With the passage of each year, the number of those on death row increased and the stakes grew higher and higher.

Then in 1971 the Court took its first turn toward the noose: In Mc-Gautha v. California, it held that a condemned person’s constitutional rights were not violated “by permitting the jury to impose the death penalty without any governing standards” or by permitting the imposition of the death penalty in “the same proceeding and verdict as determined the issue of guilt.” At that point it looked like the string might have been played out: there were no more “narrow” procedural grounds. The Court would have to confront the ultimate issue. But it was not the same Court that had been sitting when the strategy was originally devised; there were four new Nixon appointees, and it was clear that at least some of them believed the death penalty to be constitutional. The umpires — if not the rules — had been changed after the strategy of the game had been worked out and irretrievably put into action. Now there was no pulling back.

The drama intensified. The Court let it be known that finally it was ready to decide the ultimate issue. Knowledgeable lawyers—counting noses on the Court—were predicting that the death penalty would be sustained by a narrow majority. Some thought that it might be struck down for rape but sustained for murder. Some predicted that the Court would once again find—or contrive—a reason for avoiding the ultimate issue. A few, of optimistic bent, kept the faith and expressed the belief that the Court—even this Court—would simply not send hundreds to their death.

And then a major and unanticipated break. The California Supreme Court — perhaps the most influential state court in the nation —ruled that its constitution (which had substantially similar wordings as the federal Constitution) forbade the death penalty. Then, on the last day of the United States Supreme Court’s 1971 term, the decision was rendered in a case called Furman v. Georgia. The death penalty, as administered in this country, was unconstitutional. The argument proposed by Justice Goldberg on my first day as his law clerk had now been accepted by a majority of the Justices. Goldberg called me in joy, offering mutual congratulations and crediting me with implementing his idea. I was thrilled.

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