The Loss of Constitutional Faith: McCleskey v. Kemp and the Dark Side of Procedure

Scott E. Sundby

University of Miami School of Law

November 19, 2012

University of Miami Legal Studies Research Paper No. 2012-35

Twenty-five years after it was decided, a legal scholar can still use McCleskey v. Kemp as shorthand for a Supreme Court decision that failed to protect the Constitution’s most basic values. This Article uses Justice Powell’s papers to gain new insight into how an opinion came to be written that engendered so much criticism. What emerges is a sense of how Justice Powell’s belief in the legal system, when coupled with his distrust of “statistical jurisprudence,” led him to place his faith in legal procedures despite statistical evidence that racial bias was infecting the death penalty. McCleskey is thus an important lesson that procedure, despite its many benefits, can have a dark side if it becomes a veneer obscuring injustice.

Justice Powell’s opinion, especially the final section of the decision, also provides important lessons about how a judicial opinion communicates messages that reach beyond the holding itself. Indeed, the Article compares Powell’s opinion to the concurrence that Justice Scalia proposed but never wrote – a concurrence that would have acknowledged that “irrational sympathies and antipathies including racial” inevitably enter a capital jury’s decision, but then would have found no constitutional violation. The Article ultimately asks: although Scalia’s position might have provoked outrage, might not its candor in the long run have produced a more constructive response than Powell’s opinion which appeared to adopt a position of willful blindness towards the existence of racial bias?

Number of Pages in PDF File: 32

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Date posted: November 21, 2012  

Suggested Citation

Sundby, Scott E., The Loss of Constitutional Faith: McCleskey v. Kemp and the Dark Side of Procedure (November 19, 2012). University of Miami Legal Studies Research Paper No. 2012-35. Available at SSRN: http://ssrn.com/abstract=2178001

Contact Information

Scott E. Sundby (Contact Author)
University of Miami School of Law ( email )
1311 Miller Dr.
Coral Gables, FL 33146
United States
305-284-5848 (Phone)

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