Florida State University Law Review Volume 22 Issue 3 Article 1 1995 Adhering to Our Views: Brennan and Marshall and the Relentless Dissent to Death as a Punishment Michael Mello [email protected] Follow this and additional works at: https://ir.law.fsu.edu/lr Part of the Law Commons Recommended Citation Michael Mello, Adhering to Our Views: Brennan and Marshall and the Relentless Dissent to Death as a Punishment, 22 Fla. St. U. L. Rev. 591 (1995) . https://ir.law.fsu.edu/lr/vol22/iss3/1 This Article is brought to you for free and open access by Scholarship Repository. It has been accepted for inclusion in Florida State University Law Review by an authorized editor of Scholarship Repository. For more information, please contact [email protected]. FLORIDA STATE UNIVERSITY LAW REVIEW ADHERING TO OUR VIEWS: BRENNAN AND MARSHALL AND THE RELENTLESS DISSENT TO DEATH AS A PUNISHMENT Michael Mello VOLUME 22 WINTER 1995 NUMBER 3 Recommended citation: Michael Mello, Adhering to Our Views: Brennan and Marshall and the Relentless Dissent to Death as a Punishment, 22 FLA. ST. U. L. REV. 591 (1995). ADHERING TO OUR VIEWS: JUSTICES BRENNAN AND MARSHALL AND THE RELENTLESS DISSENT TO DEATH AS A PUNISHMENT MICHAEL MELLO* I. INTRODUCTION ..................................................... 592 A. Capital Punishmentand the Modern Court: An Overview ..................................................... 593 B. The Evolving Law of Death: "The Supreme Court's Obstacle Course" .............................. 598 II. LEGITIMACY IN HISTORY ......................................... 606 A. The Supreme Court: "Nine Scorpions in a Bottle" .................... .................................. 606 B. Early History of Dissent ................................. 607 1. Seriatim Opinions..................................... 607 2. Early "Opinions of the Court"--andEarly Dissents ................................................. 610 C. Taking Dissents Seriously: Some Great Dissenters 615 1. The Nineteenth Century ............................. 615 (a) William Johnson ............................... 615 (b) Peter Daniel ..................................... 619 (c) John Marshall Harlan......................... 622 2. The Twentieth Century .............................. 626 (a) Oliver Wendell Holmes and Louis D. Brandeis .......................................... 627 (b) Hugo L. Black and William 0. Douglas.. 635 (c) John MarshallHarlan ......................... 644 * Professor, Vermont Law School; B.A., 1979, Mary Washington College; J.D., 1982, University of Virginia. In the interest of full disclosure, I note that between 1983 and 1986 1 was an assistant public defender in Florida (first at the Office of the Public Defender in West Palm Beach, and later as a charter attorney with the office of the Capital Collateral Representative in Tallahassee, where all of my clients were death row inmates). An expanded version of this Arti- cle will be published in March 1996 by Northeastern University Press as a book entitled "Last Stand Against the Lions." I am grateful to Laura Gillen, for help that transcended the secretarial; a quintet of extraor- dinarily gifted law students, Diane Bech, Nancy Gray, Greg Beber, Ian Ridlon, and Joseph Te- trault, who put thought as well as research work into the product; and to Nancy Levit, Sheldon Novick, Dick Brooks, Michael Radelet, Kim Cook and Jeffrey Robinson, who commented help- fully on the manuscript. This Article is dedicated to Deanna Peterson, and to one of our casualties, Mark Evans. The Talmud: "All the darkness in the world cannot extinguish the light of one candle." 592 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol. 22:591 D. Modern Times .............................................. 648 Ill. LEGITIMACY IN THEORY: THE JURISPRUDENTIAL VALUE OF THE BRENNAN-MARSHALL RELENTLESS DISSENT ........ 649 A . Overview ..................................................... 649 1. Morality and the Law? .............................. 651 2. What Role Stare Decisis? ........................... 654 3. The ProperRole of the Judiciary?................ 656 B. NaturalLaw ................................................ 660 C. Positivism ................................................... 665 D. SociologicalJurisprudence .............................. 669 E. Legal Realism ............................................... 673 F. Wechsler, Ely, Choper ................................... 676 G. CriticalLegal Studies ..................................... 680 H. A Note on Civil Disobedience .......................... 684 IV. LEGITIMACY IN STRATEGY: JUDICIAL POLITICS AND THE BRENNAN-MARSHALL POSITION ................................ 685 A. Dissentsfrom Cases GrantedPlenary Review ...... 686 B. Dissentsfrom Denial of Certiorari.................... 692 V. CONCLUSION ........................................................ 694 I. INTRODUCTION [He] had me read to him from the Times the whole of Justice Blackmun's [Bowers v. Hardwick] dissent. He talked about it for days whenever one of his lawyer friends would call. [He] was the one who made me understand that a great dissent could over the course of time acquire the moral force to alter bigoted laws that seemed impregnable. Paul Monette' [The dissenter is] the gladiator making a last stand against the lions. 2 Benjamin Cardozo Legal interpretation takes place in a field of pain and death. 3 Robert Cover Cases such as these provide for me an excruciating agony of the spirit. I yield to no one in the depth of my distaste, antipathy, and, indeed, abhorrence, for the death penalty, with all its aspects of physical distress and fear and of moral judgment exercised by finite 1. PAUL MONETTE, WEST OF YESTERDAY, EAST OF SUMMER: COLLECTED POEMS xvii (1994). 2. BENJAMIN CAROzo, LAW & LrrERATURE 34(1931) (quoted in Board of Educ. of Kiryas Joel Village Sch. Dist. v. Grumet, 114 S. Ct. 2481, 2493 (1994)). 1 am grateful to Henry Schwartzschild for bringing the reference to my attention. 3. Robert Cover, Violence and the Word, 95 Yale L.J. 1601, 1601 (1986). 1995l RELENTLESS DISSENT minds. That distaste is buttressed by a belief that capital punishment serves no useful purpose that can be demonstrated. For me, it violates childhood's training and life's experiences, and is not compatible with the philosophical convictions I have been able to develop. It is antagonistic to any sense of "reverence for life." Justice Harry Blackmun, dissenting from the majority holding that capital punishment violated the Constitution 4 A. Capital Punishment and the Modern Court: An Overview At a press conference the day after announcing his retirement from the Supreme Court, Thurgood Marshall said when interviewing prospective law clerks he always asked if they liked working on dis- sents. "If they said 'no,' they didn't get a job," Marshall said. "I only picked those that liked to write dissenting opinions." 5 The retirements of William Brennan, Thurgood Marshall, and Harry Blackmun mark the end of an era-several eras, actually-and provide a fitting time to reexamine what made their judicial careers unique. This Article explores one aspect of their uniqueness: relentless dissents in capital cases. Until 1991, capital cases in the U.S. Reports invariably included dis- sents by Justice Brennan, Marshall, or both. Brennan and Marshall doggedly voted against the death penalty in virtually every case since 1976, when the Court first upheld the constitutionality of capital pun- ishment.6 Sometimes their dissents were in detail and sometimes in boilerplate. The Justices dissented not only to the imposition of capi- tal punishment in cases granted certiorari review, but also in almost every capital case where certiorari was denied. In more than 2100 cases, Brennan and Marshall reiterated their opinion that the death penalty is cruel and unusual punishment in violation of the Eighth 7 Amendment. According to Alan Bigel, in forty-two capital cases decided during the Burger era (1969-1986), excluding petitions for certiorari and stays 4. Furman v. Georgia, 408 U.S. 238, 405-06 (1972) (Blackmun, J., dissenting). 5. Anthony Lewis, Marshall Urges Bush to Pick "the Best, " N.Y. TiMEs, June 29, 1991, at A8. 6. Gregg v. Georgia, 428 U.S. 153 (1976). 7. Search of WESTLAW, Supreme Court database ("Brennan Marshall /s dissent! & (death /2 penal!) & DA(aft 1955) & DA(bef 1991)") March 1, 1995; see also Robert A. Burt, Disorder in the Court: The Death Penalty and the Constitution, 85 MicH. L. REV. 1741, 1768 (1987) (quoting E. Villarreal, Dissents to the Denial of Certiorari in Death Penalty Cases of Justices Brennan and Marshall (July 11, 1985) (unpublished Yale Law School seminar paper, listing result of LEXIS search) (noting that Brennan and Marshall had dissented from the denial of certiorari in more than 400 cases between 1976 and 1985)). 594 FLORIDA STATE UNIVERSITY LA W REVIEW [Vol. 22:591 of execution decided without opinion, Brennan wrote ten full opinionsg and a brief concurring statement in fifteen others. 9 Mar- shall wrote sixteen full opinions 0 and added ten brief statements re- iterating his categorical opposition to the death penalty. I"During his tenure on the Rehnquist Court (1986-1990), Brennan wrote ten full opinions for death penalty cases' and a brief statement in five 8. See Alan I. Bigel, Justices William J. Brennan, Jr. and Thurgood Marshall on Capital Punishment, 8 Nomns DAME J.L. ETmcs & Pua. POL'Y 11 (1994); Glass v. Louisiana, 471 U.S. 1080 (1985) (Brennan, J., dissenting); Francis v. Franklin, 471 U.S. 307 (1985); Wainwright v. Witt,