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Abstract:
Conventional wisdom is that outside the Eighth Amendment context, the Supreme Court does not engage in the sort of explicitly majoritarian state nose-counting for which the 'evolving standards of decency' doctrine is famous. Yet this impression is simply inaccurate. Across a stunning variety of civil liberties contexts, the Court routinely, and explicitly, bases constitutional protection on whether a majority of states agree with it. This Article examines the Supreme Court’s reliance on the majority position of the states to identify constitutional norms, then turns to the qualifications, explanations, and implications of state polling as a larger doctrinal phenomenon. While the past few years have seen an explosion of constitutional law scholarship demonstrating the Supreme Court’s majoritarian tendencies, the most powerful evidence of the Court’s inherently majoritarian nature has been right under our noses all along: its widespread use of explicitly majoritarian doctrine.

Abstract:
For the first time in a long time, the Supreme Court's most important death penalty decisions all have gone the defendant's way. Is the Court's newfound willingness to protect capital defendants here to stay? Or is it a passing fancy that will dissipate in less hospitable times? At first glance, history allows for optimism. Furman v. Georgia, the 1972 landmark that invalidated the death penalty, provides a seemingly perfect example of the Court's ability and inclination to protect capital defendants when no one else will. Furman looks countermajoritarian, scholars have claimed it was countermajoritarian, and even the Justices saw themselves as playing a heroic, countermajoritarian role in the case. But the lessons of Furman are not what they seem. Rather than proving the Supreme Court's ability to withstand majoritarian influences, Furman teaches the opposite - that even in its more countermajoritarian moments, the Court never strays far from dominant public opinion, tending instead to reflect the social and political movements of its time. This Article examines the historical context of Furman v. Georgia and its 1976 counterpart, Gregg v. Georgia, to highlight a fundamental flaw in the Supreme Court's role as protector of minority rights: its inherently limited inclination and ability to render countermajoritarian change. In theory, the Court might protect unpopular minorities, but in practice it is unlikely to do so unless a substantial (and growing) segment of society supports that protection. Even then, Furman reminds us that the Court's "help" may do more harm than good. If the past truly is a prologue, Furman portends that the Court's current interest in restricting the death penalty will not last forever. Like the fair-weather friend, the Court's protection will likely be there in good times but gone when needed the most.

Abstract:
When the Supreme Court decides death, how much does law matter? Scholars long have lamented the majoritarian nature of the Court's Eighth Amendment evolving standards of decency doctrine, but a close look at the Court's decisions in this area shows that their criticism misses the mark. Doctrine does not matter one whit in the Supreme Court's evolving standards cases, but where majoritarian doctrine does not constrain the Court's decision-making, other majoritarian forces do. To make this point, I first examine three of the Supreme Court's most prominent (and in two cases, most recent) evolving standards decisions, along with the decisions they implicitly or explicitly overruled. In each set of cases, I attack the doctrinal justification for the Court's change of position, offering larger historical context as a more compelling, nondoctrinal explanation for why those cases came out the way they did. I then use political science models of Supreme Court decision-making to explain how broader social and political forces push the Court towards majoritarian death penalty rulings for reasons wholly independent of majoritarian death penalty doctrine. Finally, I bring the analysis full circle by showing how broader sociopolitical forces even led to the development of the "evolving standards" doctrine, turning current death penalty scholarship on its head. As I show, problematic doctrine is not to blame for majoritarian influences; rather, majoritarian influences are to blame for problematic doctrine. In the end, the real obstacle to countermajoritarian decision-making is not doctrine, but the inherently majoritarian nature of the Supreme Court itself.

death penalty, capital punishment

Abstract:
When the Supreme Court decides death, how much does law matter? Scholars long have lamented the majoritarian nature of the Court's Eighth Amendment evolving standards of decency doctrine, but a close look at the Court's decisions in this area shows that their criticism misses the mark. Doctrine does not matter one whit in the Supreme Court's evolving standards cases, but where majoritarian doctrine does not constrain the Court's decision-making, other majoritarian forces do. To make this point, I first examine three of the Supreme Court's most prominent (and in two cases, most recent) evolving standards decisions, along with the decisions they implicitly or explicitly overruled. In each set of cases, I attack the doctrinal justification for the Court's change of position, offering larger historical context as a more compelling, nondoctrinal explanation for why those cases came out the way they did. I then use political science models of Supreme Court decision-making to explain how broader social and political forces push the Court towards majoritarian death penalty rulings for reasons wholly independent of majoritarian death penalty doctrine. Finally, I bring the analysis full circle by showing how broader sociopolitical forces even led to the development of the "evolving standards" doctrine, turning current death penalty scholarship on its head. As I show, problematic doctrine is not to blame for majoritarian influences; rather, majoritarian influences are to blame for problematic doctrine. In the end, the real obstacle to countermajoritarian decision-making is not doctrine, but the inherently majoritarian nature of the Supreme Court itself.

death penalty, capital punishment