Deciding Death

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.

Keywords: death penalty, capital punishment

JEL Classification: K14

Accepted Paper Series