Adhering to Our Views: Justices Brennan and Marshall and the Relentless Dissent to Death as a Punishment

Abstract

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 dissents. "If they said ‘no,’ they didn’t get a job," Marshall said. "I only picked those that liked to write dissenting opinions."

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 dissents by Justine 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 punishment. Sometimes their dissents were in detail and sometimes in boilerplate. The Justices dissented not only to the imposition of capital 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 Amendment.

Keywords: Brennan, Marshall, Capital Punishment